cording to the better view, where a danger- | laborers employed by the contractor. The ous excavation is made, and negligently left danger arises from the very nature of the imopen, without proper lights, guards, or cov- provement; and, if it can be averted only by ering, in a traveled street or sidewalk, by a special precautions, such as placing guards contractor under the corporation for building or lighting the street, the corporation which a sewer or other improvements, the corpora- has authorized the work is plainly bound to tion is liable to a person injured thereby al- take those precautions. The contractor may though it may have had no immediate con- very probably be bound by his agreement not trol over the workmen, and had even stipu- only to construct the sewer, but also to do such lated in the contract that proper precautions other acts as are necessary to protect_travel. should be taken by the contractor for the pro- But a municipal corporation cannot, I think, tection of the public, and making him liable in this way, either avoid indictment in behalf for accidents occasioned by his neglect." Id. of the public, or its liability to individuals § 1027. In Storrs v. Utica, 17 N. Y. 104, it who are injured." It is true the question is was held that a municipal corporation, owing not entirely free from difficulty, and that the to the public the duty of keeping its streets doctrine of Barry v. St. Louis, 17 Mo. 121, in a safe condition for travel, is liable to per- and Painter v. Mayor, 46 Pa. St. 213, relied sons receiving injury from neglect to keep upon and cited by counsel for the defendant, proper lights and guards at night around an sustains their position; but we think the excavation which it has caused to be made in weight of authority, as well as sound reason the street, whether it has or has not contract- and public policy, is against them. See ed for such precautions with the persons ex- Storrs v. Utica, 72 Amer. Dec. 441, note; ecuting the work. This is regarded as a Robbins v. Chicago, 4 Wall. 657; Water Co. leading case, and, like the case in hand, was v. Ware, 16 Wall. 566; St. Paul v. Seitz, 3 an action against the city for negligence in Minn. 297, (Gil. 205;) Mayor v. McCary, 84 suffering to remain open, and without proper Ala. 470, 4 South. Rep. 630; Mayor v. O'Donlights and guards, at night, an excavation in nell, 53 Md. 110: Logansport v. Dick, 70 Ind. the street made in the construction of a 65; Detroit v. Corey, 9 Mich. 165; Springsewer, by reason of which negligence the field v. Le Claire, 49 Ill. 476; Circleville v. plaintiff drove a wagon in the sewer, and Neuding, 41 Ohio St. 465; Nashville v. was injured. After reviewing previous de- Brown, 9 Heisk. 1; Wilson v. Wheeling, 19 cisions of the court, Judge COMSTOCK says: W.Va. 323; 2 Dill. Mun. Corp. §§ 1027, 1029, “But in Blake v. Ferris [5 N. Y. 48] there 1030. It is undeniable that the ditch dug was a difference in the facts which may jus- across the street for the purpose of constructtify the doubt I have suggested. In that ing the sewer was performed by the concase there was no complaint of negligence in tractor under the express authority of the the actual performance of the work. The city. It let the contract to him to do the ditch was carefully and skillfully dug. There work as specified, and authorized him to exwas no careless projection of rocks against cavate the street for that purpose, but the horses or travelers. The plaintiff's carriage primary obligations to keep the street in a and horses were driven into the ditch be- reasonably safe condition for travel devolved cause it was not guarded at night. The upon it by laws from which it could not dicause of the accident, therefore, was not in vorce itself by contract. Such a ditch, left the manner in which the work was carried uncovered, and not properly lighted or guardout by the laborers. If it had been, their ed at night, across a public street, necessarily immediate employer, and he only, was liable involved great danger and liability to injury for the injury. But, in a sense strictly logi- to those who might have to travel it. The cal, as it seems to me, the accident was the public have a right to assume that a duty result of the work itself, however skillfully imposed by law is performed, and that, in performed. A ditch cannot be dug in a pub- the absence of notice by lights or safeguards, lic street, and left open and unguarded at such duty will be attended to, and the street night, without imminent danger of such kept in a reasonably safe condition for casualties. If they do occur, who is the au- travel. Such a duty cannot be evaded by thor of the mischief? It it not he who causes contract. When the municipality makes a the ditch to be dug, whether he does it with contract with a person for the construction his own hands, employs laborers, or lets it of a sewer, which necessarily requires an exout by contract?" The learned judge then cavation in the street that will render it unproceeds: "The principles suggested become safe and dangerous to travelers at night, unplain propositions in the case of a municipal less protected by lights and guards, and such corporation, which owes to the public the duty person, although an independent contractor, of keeping its streets in a safe condition for in the prosecution of the work leaves the travel. * * * Although the work may street in an unsafe condition for travel, by be let out by contract, the corporation still reason whereof an injury is sustained by anremains charged with the care and control of other, the.corporation will be liable, without the street in which the improvement is car- regard to the stipulations in the contract in ried on. The performance of the work nec- respect thereto. While the defendant very essarily renders the street unsafe for night properly has provided in its contract that the travel. This is a result which does not at contractor shall, in the prosecution of the all depend on the care or negligence of the work, observe all necessary precautions LORD, J. This is a proceeding to compel the execution of a sheriff's deed. The facts are these: The plaintiffs were purchasers at a sheriff's sale of the land in controversy, and subsequently the sale was confirmed, and thereafter one Smith made a quitclaim deed of the same to the defendant Skiff, who served notice to redeem from plaintiffs, and which plaintiffs refused to allow; that, after the expiration of four months after confirmation of the sale, the plaintiffs demanded a sheriff's deed from the defendant Croisan, as sheriff, and the said defendant refused, etc. The only question presented by the facts, which were stipulated, is, could the defendant Skiff redeem the premises from the plain- | tiffs as successor in interest of said Smith and the judgment debtor? The lower court held in the affirmative, and the appeal is to determine the correctness of that holding. It will be noted that the confirmation of the sale had been made to the plaintiffs as purchasers before the judgment debtor, Smith, transferred his right of redemption to the defendant Skiff, and the contention of the plaintiffs is that the statute does not authorize a successor in interest to redeem after confirmation of the sale. The proper solution of the question requires an examination of the provisions of our statutes in regard to the subject, and the purpose of them. It is provided by section 300, Code Or., that "property sold subject to redemption, * * * or any part thereof separately sold, may be redeemed by the following persons or their successors in interest: (1) The judgment debtor or his successor in interest in the whole or any part of the property separately sold," etc. Section 303 provides that "the judgment debtor or his successor in interest may redeem the property at any time prior to the confirmation of sale, on paying the amount of the purchase money, with interest at the rate of ten per centum per annum," etc. "But, if the judgment debtor do not redeem until after confirmation of the sale, thereafter he shall redeem within four months from such order of confirmation, and not otherwise." The construction given to these by counsel for plaintiffs is that the former section is intended to name the classes of persons who may redeem, and the latter the time within which each person of that class may redeem; and that as the last section (303) mentions the judgment debtor or successor in interest prior to the confirmation as one who may redeem, but wholly omits the successor in interest after the confirmation of the sale, the right to redeem belongs only to the judgment debtor, who is expressly mentioned; and that, therefore, the time within which the defendant Skiff, as a successor in interest of Smith, the judgment debtor, is entitled to redeem, is after sale, and before confirmation, but not after confirmation. His argument is, as the proceeding is statutory, and the right conferred statutory, that a person claiming the. right to redeem must show, not only that he comes within a class entitled to redeem, but he must show that he comes within the time limited by that class to redeem, and unless he does so, under the canons of construction, the court cannot aid him by intendment or construction, not supported by the words of the statute. It is said that the statutory right to redeem is not a property right which is subject to bargain and sale, but a mere privilege conferred by law, and, when a certain class of persons are enumerated who are invested with the right to redeem, it excludes all other classes not named. Powers v. Andrews, 84 Ala. 291, 4 South. Rep. 263. our section, (300,) in enumerating the classes who may redeem, expressly mentions the successor in interest, which plainly means and recognizes that the statutory right to redeem is a property right, subject to sale and transfer like other property rights derived from law and conferred upon the judgment debtor or his successor in interest, to whom he may transfer such right to redeem. In the light of the statute, the right to redeem is regarded as valuable, and, in order to give the judgment debtor the benefit of it, he may exercise such right himself, or he may transfer it to another who becomes his successor in interest, and entitled to exercise such right. The right, then, under our statute, is not merely a privilege personal to the judgment debtor, but a right of property which is the subject of bargain and sale. It follows, on principle, that so long as the right to redeem exists in the judgment debtor, and his property while it so exists, it is the subject of bargain and sale, and, as this continues after confirmation, he may sell or assign it, and his successor in interest redeem the property. Nor is there anything in the statute in contradiction of it. There was no need of mentioning But expressly the successor in interest, after the right to redeem was conferred upon him and authorized; for that indicated that such right was regarded not as a mere personal privilege, but a right of property, and subject to a contract of bargain and sale, and, so long as such right to redeem exists in the judg- | ment debtor, he may have a successor in interest, and, as such right may exist in him after confirmation, it is the subject of contract or sale, and his successor in interest may redeem after confirmation, and consequently the defendant Skiff was authorized to redeem. Nor is this result inconsistent with the construction of these provisions, as stated by Mr. Justice DEADY in Lauriat v. Stratton, 6 Sawy. 348, 11 Fed. Rep. 107, in which he says: "A redemption, then, by either of the successors in interest of Mary R. Hall, at any time while the property was subject to redemption, whether before or after the confirmation of the sale, put an end to the proceeding, and thereafter such successor held the property as though no sale of the same had ever been made." This view is in harmony, too, with the general impression which has prevailed in the profession as to the interpretation of these provisions, and the right of the successor in interest to redeem after confirmation. While it is due to say that the counsel for the plaintiffs presented his point clearly and argued it ably, we are not prepared, for the reasons stated, to concur in his conclusions, and must therefore affirm the judgment. 1. A director of a private corporation is not legally entitled to compensation for services rendered in the performance of duties appertaining to his office, unless it is provided for by a resolution or by-law of the corporation, adopted prior to the time of the performance of the services; nor will the auditing and allowance of a claim for such services by the board of directors of the corporation render it legally binding upon the corporation, in the absence of proof of such prior resolution or by-law. 2. Where the president of a board of directors of a private corporation presented a claim for salary to the board, which it allowed, and the corporation thereafter made an assignment for the benefit of its creditors, in accordance with the statute in such case made and provided, and the president subsequently presented to the assignee of the insolvent corporation a claim for the amount of salary so allowed, to which certain parties interested in the insolvent estate filed exceptions, on the grounds that the claimant had rendered no services as president, and the matter was thereupon tried by jury, and it appeared upon such trial that the by-laws of the corporation provided that the salary of the president and its other officers should be fixed by the board of directors, but that no agreement had been made or anything said upon the subject, nor any action taken by the corporation in regard thereto prior to the time of such allowance by the board, held, that the claim was not a valid or binding obligation upon the cor poration, and could not legally be enforced against its estate in the hands of the assignee. (Syllabus by the Court.) Appeal from a judgment of the circuit court for the county of Wasco, rendered in a case of exceptions to the appellant's claim against an insolvent estate. The Lost Lake & Columbia Manufacturing Company, a corporation organized under the laws of this state, on or about the 23d day of September, 1887, made a general assignment for the benefit of its creditors. The corporation was organized about the 1st day of September, 1883, for the purposes of constructing and maintaining a canal and flume for waterpower, and of building and operating a mill to manufacture lumber at Hood River, Wasco county. It thereupon engaged in the enterprise and business for which it was organized, and prosecuted the same until it made the assignment, during which time it manufactured and sold large quantities of lumber to divers parties. On the 17th day of September, 1887, the mill was accidentally destroyed by fire, which occasioned the assignment. The appellant was a stockholder and director in the corporation during its existence, and was also the president of its board of directors. It appears from the bill of exceptions that on the 22d day of September, 1887, the board of directors held a special meeting, at which, among other proceedings, the following were had: "Present, B. P. Cardwell, T. A. Wood, and E. C. Miller; T. A. Wood in the chair. The president reported that information had been received that on the morning of the 17th the saw-mill owned by this company had been destroyed by fire. A bill for salary was presented by the president, T. A. Wood, for $4,800. On motion, the bill was ordered paid. A bill for salary was also presented by the manager, E. C. Miller, for $400. On motion, the same was ordered paid." That the board then proceeded to adopt a preamble and resolutions to the effect that, as the corporation was indebted in a sum exceeding $14,000, it had not the money to pay the indebtedness, and, as it was desirous that the property should be equally divided among its creditors, that, therefore, the president and secretary be and were authorized, empowered, and directed to make a general assignment of all its property for the benefit of its creditors; in pursuance of which, the said assignment was made at the time aforesaid to one Joseph L. Melrath. That the said assignee duly qualified and en tered upon the discharge of his trust. subsequently the appellant presented a claim against the estate of the insolvent, including in the claim the said $4,800, which was allowed by the assignee. Thereafter, however, certain of the creditors of the estate, who had presented claims against it, filed exceptions to the appellant's said claim, upon the grounds that he had not rendered any services as president of the corporation during the time for which he had charged the salary allowed by the board. That the appellant filed an That answer to the said exceptions, raising an is- | employment like any other man. If it be sue of fact, which was tried by jury. proper that directors generally should receive compensation, let it be so provided in the organic act which creates the body. Those who commit their money to its care will then do it with their eyes open. Until this be provided, there is no reason, in law or morals, for allowing their property to be taken without their knowledge or consent." The decision in this case is very pronounced that a resolution passed by a corporation after such services are rendered is without consideration, and imposes no obligation on the corporation which can be enforced by action. It appeared on said trial that the by-laws of the corporation provided as follows: "The salaries of the president, vice-president, and controller shall be fixed by the board of directors. Those of all subordinate officers shall be fixed by the manager, subject to the approval of the board." And it also appeared that there was no agreement that the appellant should receive any salary for acting as president, and nothing was said nor any action taken by the corporation in regard thereto prior to the meeting of the directors before referred to, and their alleged proceed-So, also, is the decision in Kilpatrick v. Bridge ings at that meeting. Upon the trial of the said issue, the jury returned a verdict that the appellant had a just and valid claim against the insolvent corporation for $1,429.91 for moneys advanced and interest, and for the further sum of $800 for services, making a total of $2,229.91. On this verdict the judgment appealed from was entered. E. B. Dufur, for appellant. J. H. Wood-railway corporation was appointed a memward, for respondent. THAYER, C. J., (after stating the facts as above.) The appellant's counsel urged at the hearing two points with much force and reason: First, that the board of directors of the insolvent corporation having fixed and allowed the appellant's compensation for serv. ices as president of the board for the time charged,-$150 a month, for the previous 32 months, the allowance so made was conclusive upon the exceptors; second, that the uncontroverted testimony given on the part of the appellant at the trial proved, as a matter of law, that he was entitled to such allowance, and that it was error on the part of the jury to find thereon that he was only entitled to $800. I was inclined to believe, when the question was presented at the argument, that the allowance of the appellant's claim by the board of directors, as shown by the proof, was, at least, prima facie evidence that he was entitled to the sum allowed. Section 3225, Ann. Code, provides: "From the first meeting of the directors the powers vested in the corporation are exercised by them, or by their officers or agents, under their direction, except as otherwise specially provided in this chapter;" and my first impression was that an allowance so made would be regarded as correct and valid, unless impeached for fraud or collusion. I find, however, upon an examination of authorities bearing upon the subject, that such an allowance on account of past services can not legally be made, and some of them go so far as to hold that a board of directors of a corporation cannot contract with one of its own members for compensation, unless authorized to do so by the charter of the corporation. In Association v. Stonemetz, 29 Pa. St. 534, the court, by PORTER, J., in the concluding part of the opinion says: "If the services of the director become important to the corporation, let him resign, and enter its v.23p.no.14-54 Co., 49 Pa. St. 118. Both these decisions hold that corporations are not liable for services performed by their officers, unless rendered in accordance with an express contract for compensation entered into prior to such performance. The same principle was also adhered to in Cheeney v. Railway Co., 68 Ill. 570. In the latter case a director in a ber of the executive committee thereof, and acted as such for a length of time; he was also appointed an agent of the company to transact other of its affairs. He charged for his services in both cases, and presented a claim therefor to the company amounting to $4,000, which was audited by its executive committee, and the board of directors of the corporation, at a meeting subsequently held by them, appropriated $25,000 to pay this claim and certain other ones. The court, in an action to enforce the payment of the said claim, heid that the claimant was not entitled to recover for the services rendered by him for the company as director; that, in order to entitle him to recover compensation for such services, it must have been provided for and fixed in the by-laws, or by resolution of the directors spread upon the minutes of their proceedings before the services were rendered. The court, however, held that the claimant was entitled to recover for services rendered for the company which did not pertain to his duty as such director. This doctrine was recognized as the law and maintained in Graves v. Mining Co., decided by the supreme court of California, and reported in 22 Pac. Rep. 665. From these, and a great many other authorities which might be cited, it is evidently a settled rule of law that a director in a corporation acquires no legal claim against it for services performed by him in the discharge of duties pertaining to the office or trust, unless a compensation therefor was fixed by a resolution or by-laws of the corporation prior to the performance of the services, and that the auditing and approval of such a claim by the auditing officers of the corporation does not impart to it legal validity. If, however, services are performed by such director for the corporation at its instance and request, in regard to matters outside of the duties devolving upon him by virtue of his office or trust, then he is entitled to claim compensation therefor upon a quan tum meruit, although none had been fixed | by the corporation prior to the performance thereof. The appellant in this case, therefore, had no standing in court without proving that the compensation for the services claimed by him had been fixed by the corporation in the manner indicated before they were rendered, or that said services were not germane to the duties of his position of trust, and that he was directed by the corporation to perform them. Otherwise no legal obligation can be established against the corporation, although the services were rendered in the expectation of a remuneration therefor. Railroad Co. v. Ketchum, 27 Conn. 170. According to this view, which seems to be sustained by an overwhelming weight of authorities, the appellant had no legal right to demand the $4,800 for salary as president of the board of directors, notwithstanding his claim therefor had been approved by the board. It is unnecessary, therefore, to consider the second question presented by the appellant's counsel, which is above set out, nor the instruction of the court as to the right of the jury to inquire into the merits of the appellant's claim. The instruction, under the strict rules of law, was more favorable to the appellant than the court was authorized to give. The appellant may have been justly entitled in morals to the salary claimed, but, unfortunately for him, the law does not recognize his claim therefor as a legal obligation. The services for which the appellant claimed compensation were a part of the duties of his office, and compensation therefor, not having been fixed as suggested, cannot be enforced. The judgment appealed from must, for the reasons mentioned, be affirmed. (19 Or. 97) JANEWAY . HOLSTON. (Supreme Court of Oregon. April 21, 1890.) APPEAL-RECORD-BILL OF EXCEPTIONS. The stenographic notes taken at the trial of a cause, transcribed in full, and copied in the record, and signed by the trial judge, to which are prefixed a statement calling it a "bill of exceptions," and the further statement that "the following exceptions will be relied upon by the defendant," followed by a reference to the testimony of sundry witnesses, giving the page, all the crossexamination of a certain witness on a particular subject, all the testimony introduced on the part of the defendant, charge of the court to the jury, giving pages and certain lines, do not constitute a bill of exceptions, or present anything for review on appeal. (Syllabus by the Court.) Appeal from circuit court, Multnomah county; E. D. SHATTUCK, Judge. W. H. Adams, Grant Manguam, and Ed. Mendenhall, for appellant. Glarin & Gilbert, for respondent. STRAHAN, J. This is an action for malicious prosecution, in which the plaintiff recovered a judgment for $200 damages, from which the defendant appeals. The complaint states a cause of action, and the verdict and The reporter's notes contain ample material from which a bill of exceptions might have been constructed, but the wildest liberty in the use of language cannot torture this writing into one. Section 230, Hill's Code, defines an exception, and section 231 points out the method of making the same a part of the record so as to make the same reviewable in this court; and we have several times endeavored to point out the necessity of observing these provisions of the Code in the preparation of a case on appeal to this court. If these provisions of law be utterly disregarded, there is nothing presented which we can properly examine. It is true, we might labor through this voluminous roll of manuscript, and we might, possibly, find something which we might conceive to be erroneous; but it is not covered nor pointed out by a particular and specific exception, and so separated from other matter that its identity can be known. Rather than to undertake to further define and point out the proper form of a bill of exceptions, we prefer to refer to precedents, a number of which may be found in sections 1141, 1142, et seq., Green, Pl. & Pr. under the Code. Any standard work on Code practice will furnish substantially the same forms. There being no questions presented by the record for review on this appeal, the judgment of the court below must be affirmed. (19 Or. 122) LUPER v. WERTS et al. (Supreme Court of Oregon. April 14, 1890.) WILLS-EXECUTION-EVIDENCE-PROBATE. 1. Under the statute of Oregon, every will, in order to be effective, is required to be in writing, signed by the testator, or by some other person under his direction, in his presence, and attested by two or more competent witnesses subscribing their names to the will in the presence of the testator. |