off a personal debt to him against the claim of a distributee.

3. In proceedings to settle the accounts of an administrator, a probate court has jurisdiction to determine the right of the administrator, as such, to set off against the claim of a distributee the amount of costs which accrued in favor of the estate in suits brought by such distributee.

Appeal from circuit court, Union county; Morton D. Clifford, Judge.

Proceeding by M. S. Bloch, as administrator of the estate of A. Dray, deceased, for the settlement of his accounts. From an order approving a supplemental account, Henry Dray, a distributee, appeals. Reversed.

This appeal is prosecuted by Henry Dray, an heir of A. Dray, deceased, and a creditor of his estate. M. S. Bloch, as administrator of the estate, filed his final account in the county court of Union county on the 6th day of September, 1892. To this account objections were filed by the appellant and one D. Marks, also a creditor. Upon a hearing the court on February 18, 1893, after charging the administrator with some small items omitted, approved and settled the account. It was found that the administrator had in his hands, subject to payment of claims and distribution:

The claim of Henry Dray, and the fees of the administrator and clerk, aggregating $1,075.01, were allowed by the court, leaving $2,168.85 for distribution among the heirs, viz. Henry Dray, this appellant, $722.95, and S. A. and J. W. Dray each a like amount. It was also decreed that upon filing receipts showing payments of these several amounts, or, in case he should be unable to file them within 30 days, that he deposit such amount as remained in his hands with the county clerk, he be thereupon discharged. The objectors appealed from this decree to the circuit court, and, it being there affirmed, appealed to this court, which affirmed the decree of the circuit court. See Dray v. Bloch, 27 Or. 549, 41 Pac. 660. On September 24, 1894, and after the circuit court had affirmed the decree, but before the appeal had been taken to this court, the administrator filed in the county court what he terms a "Supplemental Account to His Final Account," which was approved in its entirety October 2, 1894. From this order Henry Dray appealed to the circuit court, which being there affirmed, he now prosecutes his appeal to this court. The supplemental account shows, in effect, that since filing the final account the appellant and Dan Marks, by their objections thereto, put the administrator to great extra expense, by reason of having to employ counsel to defend him in the circuit and supreme courts, and to pay the fees of officers, etc. He then attempts to show, in

| effect, that Henry Dray's interest in the estate, consisting of his said claim and distributive share of the residue, is subject to certain set-offs. The first consists of certain debts which it is alleged that Dray owed M. S. Bloch in his individual capacity, and which he agreed that Bloch might retain out of what was coming to him from the estate. The remaining items consist of attorney's fees and costs incurred in the county and circuit courts. These latter items, it is claimed, should be charged up to Dray's distributive share, as it was ris acts that caused the administrator to incur the expense. The administrator, by the supplemental account, charges himself with the same amount that he is charged with by the decree of the court on the final settlement, but claims credit for the following additional items:

City tax, La Grande, October 17, 1892
Clerk's fees, A. T. Neill.
Expense allowed since filing final ac-
count

Goods turned over to court.
Sheriff's fees on citation..

And also claims credit for claim of
Henry Dray

Interest from October 6, 1891.

$ 13 65

21 35

105 00

12 60

20 15

672 75 73 25

Bloch, individually, and Henry Dray. In Cross v. Baskett, 17 Or. 84, 21 Pac. 47, it was held that "a decree approving a final account is not conclusive, but prima facie evidence only. Besides, after an executor has settled an estate after notice to all persons interested, *the burden of proving error ought to be shifted to those who assail it." The statute provides (Hill's Ann. Laws Or. § 1173): "Upon the filing of the final account, the court or judge thereof shall make an order directing notice thereof to be given in the same manner as the notice of an appointment of an executor or administrator, and appoint a day at some term subsequent thereto for the hearing of objections to such final account and the settlement thereof." And section 1181 provides: "Before the time appointed for the hearing and settlement of a final account, the executor or administrator shall file with the clerk a copy of the notice thereof, with the proper proof of its publication as directed." It is apparent that before a final account can be heard, adjusted, and settled, so as to be of binding force upon the creditors, heirs, and legatees, these statutes must be observed, and unless they are the court is without competent authority to make a decree allowing or disallowing the account. But after the term during which the decree is entered, approving and settling the account, the court is without jurisdiction to change or modify it. Harvey's Heirs v. Wait, 10 Or. 117. It being a statutory prerequisite that a valid final decree should be preceded by an order fixing a day of hearing, notice and proof thereof, although it is said that the decree is prima facie evidence only of the correctness of the account as thereby settled and allowed (Cross v. Baskett, supra), yet it would work an absolute abrogation of these statutory formalities if it were permissible, after the term at which the decree was entered, to file a "supplementary account" which is in itself a radical modification of the final account, and for the court, upon an ex parte showing of the kind, and without the slightest observance of any of such statutory regulations, to pass and enter a decree approving and settling the same, which must needs take the place of the regular final decree. It was surely not intended by the legislature that these minute statutory directions should be thus obviated, and we know of no rule of practice by which they may be disregarded. They are by no means a dead letter, and ought not to be shorn of vitality by methods of indirection. If it is at all permissible for the county court, after the term, to set aside, vacate, or modify its decree settling a final account (as touching which we pass no opinion), it certainly could not be done without a hearing, and some sufficient prior notice thereof to the parties interested, so that they may have their day in court. The appellant having had no notice of the filing of the supplemental account, nor of the hearing touching it, the court was for this reason, if for no other,

[ without competent authority to pass the account or enter the decree.

The second proposition must also be resolved in favor of appellant. The county court, sitting in probate, is not competent to try issues which may arise out of differences existing between the administrator and the heirs or claimants in their individual capacities. The settlement of estates of deceased persons can in no way be affected by such differences, and hence it is not within the province of a probate court to take cognizance of them. They should be determined in the courts specially constituted and competent to adjudicate concerning them. So it is that the administrator cannot claim an offset of a debt due him against a creditor or distributee of the estate. Bradshaw's Appeal, 3 Grant, Cas. 109; Standley v. Langley, 25 Miss. 252; Gardner v. Gillihan, 20 Or. 601, 27 Pac. 220; McLaughlin v. Barnes (Wash.) 41 Pac. 62. These authorities are conclusive of Bloch's claim to offset his individual account with Henry Dray against Dray's claim or distributive share of the residue. The attorney's and referee's fees and costs in the circuit court, charged against Henry Dray individually, would appear, if valid claims, to be more properly chargeable against the estate. It is certainly not shown how Henry Dray has incurred these liabilities, individually, either to the estate, or to M. S. Bloch. But an executor or administrator may retain the whole or a part of a legacy or distributive share in discharge or satisfaction of a debt due from the legatee or distributee to the estate. Smith v. Kearney, 2 Barb. Ch. 547; Springer's Appeal, 29 Pa. St. 208; Tinkham v. Smith, 56 Vt. 187. So that if the referee's fees, or the expenses denominated "costs in circuit court," are a part of the costs adjudged against Henry Dray, and in favor of the estate, on the former appeal, they might very properly be set off by the administrator against Henry Dray's distributive share of the.estate, and probably against his claim. The decree of the court below will be reversed, and the supplemental account disallowed.

(29 Or. 386)

WAGGY v. SCOTT et al. (Supreme Court of Oregon. July 18, 1896.) PLEADING DEMURRER — JOINDER OF CAUSES OF ACTION APPEAL FROM JUSTICE'S COURT. 1. A general demurrer to a complaint containing two counts is not well taken if either count states a cause of action.

2. A count in a complaint for damages for breach of a contract to furnish a certain quantity of lumber is one on contract, and may properly be joined with a count to recover for goods sold and delivered

3. Laws 1893, p. 38, authorizing the substi tution of fermal pleadings on appeal from justice's court, when required by the court or either party, does not change the established rule of practice prohibiting the filing of amendments or new pleadings changing the issues on which the case was tried below; and where a demur

rer to a complaint or bill of items was sustained by the justice, but overruled on appeal, the defendant is not entitled to answer.

Appeal from circuit court, Baker county; Robert Eakin, Judge.

Action by Jerry Waggy against Samuel Scott, Walter Scales, and Samuel Lang, copartners as Scott & Co. Judgment for plaintiff, and defendants appeal. Affirmed.

This is an action commenced in the justice's court of district number 1 of Baker county, to recover damages resulting from the breach of a parol agreement, and also the reasonable value of goods, wares, and merchandise sold and delivered. It is alleged in the first cause of action that the defendants, for a valuable consideration, promised and agreed to deliver to the plaintiff 25,000 feet of lumber, of the reasonable value of $7 per 1,000 feet; that they delivered 4,417 feet only; and that, by reason of the premises and of the defendants' failure to deliver the remainder of the lumber, plaintiff was damaged in the sum of $148.08. And, for a second cause of action, the plaintiff alleges the sale and delivery to the defendants of certain goods, wares, and merchandise, of the reasonable value of $14.67, no part of which had been paid, for which sums judgment was demanded. To this complaint the defendants demurred, assigning the following grounds therefor: “(1) That the said complaint does not state facts sufficient to constitute a cause of action; and (2) that two causes of action are improperly joined in said complaint, to wit, the action for damages is joined with the action in assumpsit on an implied contract." The demurrer having been sustained, and the plaintiff refusing to further plead, judgment was rendered against him for the costs and disbursements of the action, from which he appealed to the circuit court of said county, which overruled the demurrer. The defendants thereupon moved the court for leave to file an answer, which being denied, judgment was rendered against them for the amount demanded, from which latter judgment they appeal.

M. L. Olmsted, for appellants. William Smith, for respondent.

MOORE, J. (after stating the facts). The first ground of the demurrer admitted the truth of the probative facts alleged, and, if the whole or any part of the complaint can be resolved into a cause of action, the general demurrer is unavailing to challenge its sufficiency. Ketchum v. State, 2 Or. 103; Toby v. Ferguson, 3 Or. 27; Simpson v. Prather, 5 Or. 86; Jackson v. Jackson, 17 Or. 110, 19 Pac. 847; Bliss, Code Pl. § 417. And, the statement in the second count being clearly sufficient to constitute a cause of action, the court very properly overruled the general demurrer.

It is contended that the causes of action

stated in the complaint are improperly joined, and that the court erred in overruling the special demurrer. Hill's Ann. Laws Or. 93, provides that "the plaintiff may unite several causes of action in the same complaint when they arise out of (1) contract, express or implied. * ** But the causes of action so united must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated." The causes of action having been separately stated, each triable in the same place, and affecting alike all the parties thereto, the only question for consideration on this branch of the subject is whether the first cause of action arose out of contract. An examination of that part of the pleading will disclose that it is an action for the recovery of damages for the nonperformance of a parol contract, and at common law would have been designated an action in indebitatus assumpsit on a promise to pay by chattels. 1 Chit. Pl. p. 21 (star pp. 38, 99). Assumpsit is always considered an action ex contractu; so that the plaintiff's first cause of action arose out of contract, and was properly joined, there can be no doubt; and, this being so, the court properly overruled the special demurrer.

The remaining question is whether the court erred in refusing to permit the defendants to file an answer. They contend that section 7 of an act of the legislative assembly approved February 20, 1893 (Sess. Laws Or. 1893, p. 38), authorizes the filing of an answer on appeal in the circuit court under the circumstances herein before stated. This section provides that, "in all cases of appeal, the bill of items of the account sued on or filed as a counterclaim or set-off, or the statement of the plaintiff's cause of action or of the defendant's counterclaim or set-off, or other ground of defense, filed before the justice, may be amended upon appeal in the appellate court to supply any defect, deficiency or omission therein by filing formal pleadings therein, when by such amendment substantial justice will be promoted; and in all cases, when required by the court or by either party to the action, formal pleadings shall be filed on either side upon the trial of the cause on appeal. When either party requires such formal pleadings, he shall cause to be served on the opposite party a notice thereof in writing, and file the same in the court where the cause is pending by the first day of the term of such court at which such cause is to be tried; but no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment." An examination of the act in question shows that it was the intention of the legislative assembly to simplify proceedings in justice's courts, and to permit issues to be joined and actions tried without the necessity of formal pleadings; but we cannot think that the act warrants the filing of an

answer raising an issue of fact in the circuit court on appeal not made in the justice's court. The act does permit formal pleadings to take the place of the bill of items of an account filed by the plaintiff, and the counterclaim or set-off filed by the defendant, in the justice's court; but such amendment is allowable in the circuit court only when no formal pleadings have been filed in the justice's court from which the appeal is taken. In the case at bar, the defendants relied on their demurrer, and, not having filed any counterclaim or set-off or other ground of defense in the justice's court, cannot invoke the aid of the act in question. In Moser v. Jenkins, 5 Or. 447, it was held that no amendment of the pleadings substantially changing the issues tried in the justice's court was allowable in the circuit court, on appeal. In Currie v. Southern Pac. Co., 21 Or. 566, 28 Pac. 884, it was held that the circuit court, on appeal from the justice's court, had no authority to allow an answer to be filed after a demurrer was overruled, as this would change the issue made in the justice's court from one. of law to one of fact. This decision was approved and followed in Forbis v. Inman, 23 Or. 68, 31 Pac. 204, and, in the absence of a statute to the contrary, has become a rule of practice in this state. It is a familiar principle that an appellate court can try only the issues which have been tried in the lower court. If the rule were otherwise, issues of fact would rarely be tried in the justice's court, for, by filing a demurrer, judgment could be rendered, and on appeal the issues could be settled and tried in the circuit court; thus practically dispensing with a trial in the justice's court. These inferior courts are established for the trial of actions which do not involve great amounts or principles, and the party who seeks the aid of such a court is afforded by the act in question a ready means of having his action there tried on its merits. There being no error in the record, it follows that the judgment is affirmed.

(29 Or. 399)

BARR v. COMBS et al. (Supreme Court of Oregon. July 18, 1896.) EXECUTION-LEVY-PROTECTION OF SHERIFF.

1. Where a sheriff has levied on goods of a judgment debtor, under an execution regular on its face, and issued out of a court of competent jurisdiction, he is protected by the writ; and evidence to charge him with knowledge that the judgment on which the execution was based had in fact been paid is inadmissible in an action for illegal seizure.

2. It is a sheriff's duty in his return to certify only to the acts performed by him in his official capacity in the levy of an execution; and his certificate as to some agreement between the parties, of which he may have had knowledge, is not admissible against either of them. Appeal from circuit court, Harney county; Mo ton D. Clifford, Judge.

Action by Emmett Barr against J. D. Combs and George Rader for the seizure and sale of

personal property under a writ of execution. From a judgment in fa or of pliatif, defed nts appeal. Reversed.

L. Kearney, for appellants.

BEAN, C. J. This is an action of trespass for the seizure, detention, and sale of certain personal property belonging to the plaintiff by the defendant Combs, sheriff of Grant county, at the instigation and request of his co-defendant, Rader. The answer admits the seizure, sale, and detention, but avers that in November, 1892, Rader duly recovered judgment against the plaintiff for the sum of $114.24, and that the property in question was seized and sold by Combs as sheriff to satisfy an execution issued May 6, 1893, on such judgment. The reply admits the rendition of the judgment, and the issuance of the execution under which the property was seized, but alleges that, in the previous January, an execution was issued on the judgment, by virtue of which a debt of $75, owing from Harrer Bros. to the plaintiff, was levied upon, and that Rader then and there agreed to, and did, accept the same as a payment on the execution, and that the remainder due thereon had been fully paid by the plaintiff prior to the execution of May 6, 1893, by reason whereof the latter execution was and is null and void. It will thus be seen that the only issue of fact made by the pleadings is whether the defendant Rader agreed to, and did, accept as payment on his judgment the amount due plaintiff from Harrer Bros.

To maintain this issue on his part, the plaintiff gave in evidence, over defendants' objection and exception, a portion of the return of the sheriff made on the execution of May 6, 1893, in which, among other things, he certified that on January 4, 1893, by virtue of an execution of that date, he served a garnishee process upon Harrer Bros., to which they answered that they were indebted to Barr in the sum of $75, which was not yet due, "but which, at the time, the plaintiff and judgment creditor, George Rader, agreed to accept as a payment on said judgment. The said plaintiff, after said garnishment was made, having refused to accept the same, I deferred further proceedings awaiting plaintiff's action, as I supposed he intended to begin proceedings against me." The object of this evidence was to prove the satisfaction of the judgment prior to the issuance of the execution of May 6, 1893, and defendant Combs' knowledge thereof. But it was manifestly incompetent as against Combs, because the execution on which he seized the property is admitted to have been regular on its face, and to have been issued by a court of competent jurisdietion. It was therefore a complete protection to him, although he may have known that the judgment on which it was based had in fact been satisfied. A sheriff cannot be wiser than his process; and if the officer or tribunal by which it is issued has jurisdiction over the