So far as the lease is concerned, it is wholly distinct and severable from the contract for the sale of the warehouse and property, and each rests upon a distinct consideration for its operation and effect. The old case of Glazebrook v. Woodrow, 8 Term R. 370, is a complete answer to the argument on this point. And as the rule is well settled that in the case of dependent covenants, if either party wishes to compel the other to perform the contract, or to subject him to damages for non-performance, he immediately makes his part of the contract precedent, and cannot proceed against the other without actual performance of the agreement on his part, or a tender and refusal; and, as it is admitted this is not alleged nor can it be alleged, the judgment must be reversed, and the complaint dismissed.

(14 Or. 184)

HEXTER V. SCHNEIDER.

(Supreme Court of Oregon. November 24, 1886.)

1. REPLEVIN-DEFENSES-VERDICT OF CONSTABLE'S JURY.

In an action to replevy goods seized under attachment by a constable, the court will exclude all evidence adduced on a trial by a jury summoned by the constable to try the question of ownership of the property seized, for his protection, under Civil Code Or. ? 284.

2. EXECUTION-SALE-RIGHTS OF PURCHASERS-BONA FIDES.

A purchaser at a void execution sale cannot rely upon his own good faith, which avails nothing against the true owner who is not a party to the process.

3. PLEADINGS-PRACTICE-AMENDMENT BY PLEA IN ABATEMENT-ACTION OF REPLEVIN. When, in an action of replevin of goods bought under execution by a purchaser with notice of plaintiff's claim, defendant asks leave to amend his answer by pleading in abatement that the real parties in interest were other than the plaintiff, the court may in its discretion refuse to allow such amendment; and, where the advantage sought by it is purely technical, permission is rightly refused.

4. ACTION-JOINDER OF PARTIES-ACTION ON BILL OF SALE.

Where a bill of sale is made to a party for the use of other parties, the party to whom it is made has nevertheless the right to bring an action upon it in his own name, without joining the parties interested in the action.

5. APPEAL OBJECTION WAIVED-MOTION TO STRIKE OUT-AMENDED ANSWER.

Where the court has allowed a motion by plaintiff to strike out parts of the defendant's answer, and defendant has filed an amended answer, the latter cannot afterwards assign as error the allowance by the court of the motion to strike out.

Appeal from circuit court, Multnomah county.

This was an action for replevin of goods brought on an execution sale. The firm of Clinton & Fagan, conducting the Elite Theater in the city of Portland, owned the property in controversy in December, 1883, under these circumstances: They had been attached by one Buckley, of San Francisco, and their property, including the safe and piano in controversy, was then in the hands of the sheriff. They had been dealing with the firm of Fleckenstein & Myer, who, in order to get such attachment released, procured the plaintiff, who was their book-keeper, to purchase the property of said Clinton & Fagan. Fleckenstein & Myer furnished the money to Hexter to make the purchase. The attachment was released, and a bill of sale executed by Clinton & Fagan to the said Hexter, and the property delivered to him. Hexter placed Clinton in charge of the property, and continued the business on his own account and in his own name for some time, until it was finally closed. Afterwards he rented the safe and piano to Mrs. Clinton, who moved the same into what is called the "Tivoli Theater Buildings." The property was afterwards sold by the constable on an execution against Clinton, and purchased by defendant. There was testimony that Hexter was present at the sale by the constable, and that, before the sale, Hexter, by his attorney, made a demand for the property of the constable. During the pendency of the trial, the defendant asked leave to amend his answer by pleading that the action abated for the alleged reason that the real parties in interest were Fleckenstein & Myer,

and not Hexter, which application was denied. For the rest, the case is sufficiently stated in the opinion. Judgment was rendered for plaintiff, from which defendant appeals.

F. V. Drake, for appellant. Jos. Simon, for respondent. ·

STRAHAN, J. This is an action of replevin brought to recover the possession of one McNeal & Urban safe and one Decker piano, alleged to be of the value of $600, and damages for their detention in the sum of $50. The amended answer denies all of the allegations of the complaint, except the taking and detention of the goods. The defendant alleges, by way of justification of the taking and detention, that on the twelfth day of May, 1885, one F. Berliner commenced an action against one R. Clinton, in Madison precinct, Multnomah county, Oregon, to recover $190; that an attachment was duly issued in said action; and that said constable duly served the summons therein on the defendant, and attached the property in controversy as the property of R. Clinton, the defendant therein; that on the twentieth day of May, 1885, a judgment was duly rendered in said action against the defendant for $190, and $66.70 costs; and that an execution was duly issued on said judgment, and the attached property applied thereon, and sold by virtue of said execution; and that at such sale the defendant herein became the purchaser of said property for the price and sum of $180, which he then and there paid to said constable; and that said constable then and there executed and delivered to him a bill of sale thereof. The answer also alleges that, at the time of the sale, the plaintiff was present, and made no claim to the property, nor forbid the sale, nor gave defendant notice of his claim, and that defendant believed and understood that he would acquire title to said property; that it had theretofore been, and was then, the property of said R. Clinton, and that defendant bid and paid his money in good faith, under the full conviction that said property was the property of said R. Clinton, and of no other person; that plaintiff's silence was a fraud upon defendant, and that plaintiff ought not to be heard now to assert right or title to said property, and that he is estopped to assert ownership or right of possession to all or any part of said property. The reply denied the new matter in the answer. Trial in the court below, and verdict and judgment for the plaintiff, from which the defendant has appealed to this court. Numerous errors are assigned by the appellant. Such of them as appear to require it I will now consider

The appellant assigns error in the ruling of the court on the plaintiff's motion to strike out parts of the defendant's original answer. This question is not before us, for the reason that, after the motion had been allowed by the court, the defendant filed an amended answer. This was a waiver of all questions touching the original answer, or of the rulings of the court in reCation to the same. If the property in controversy was the plaintiff's property, then the seizure thereof by virtue of an attachment against Clinton was clearly wrongful, and no demand was necessary before the commencement of the action.

Nor did the court err in excluding all evidence in relation to the trial before the constable. The verdict of the jury called by the officer to try the question of the ownership of the property will protect the officer, but it does not conclude the rights of the claimant. The statute plainly provides that the verdict of the jury "shall be a full indemnity to the sheriff, proceeding in accordance therewith, but shall not preclude the claimant from maintaining an action at law for the recovery of the possession of such property, or for damages for taking the same." Civil Code, § 284.

Nor did the court err in refusing to allow the defendant to plead in abatement during the progress of the trial. Amendments are in the discretion of the trial court, and this court would not interfere with that discretion, unless in case of plain abuse of discretion. Further, amendments are allowed in

furtherance of justice, and not ordinarily to give one of the parties a purely technical advantage over the other. There was no error in the ruling of the court on this application.

Caveat emptor is the rule at all execution sales, and therefore whoever buys at such sale does so at his peril. Hoxter v. Poppleton, 9 Or. 482. One wishing to purchase property at a judicial sale must take the precaution to inform himself as to the ownership of the property about to be sold, and not rely blindly upon his own good faith. It will avail nothing against the true owner who is not a party to the process.

There was no error in the ruling of the court on the subject of the estoppel. The defendant insists that the bill of sale of the property in controversy made by Clinton & Fagan to the plaintiff was for the use of Fleckenstein & Myer, and therefore the plaintiff cannot use it as evidence of his title to the property sued for. If this were true, the conclusion which the appellant

seeks to deduce from it would not follow. If this contract was made in the name of Hexter for the benefit of Fleckenstein & Myer, then he is a trustee of an express trust, and may sue on the contract, or use it in evidence of an action dependent upon it, without joining Fleckenstein & Myer in the action. Civil Code, § 29; Pom. Rem. §§ 175–177.

The instructions given to the jury as to the nature and character of the instrument in writing made by Clinton & Fagan to the plaintiff, that is, whether it was a mortgage or bill of sale, stated the law favorably to the defendant, perhaps more so than he could have claimed under the facts. There seems to have been no question but what the property in controversy was either mortgaged to the plaintiff by Clinton & Fagan, or it was sold to him. The court submitted each of these questions fairly to the jury, and no error is shown. This disposes of every question requiring notice. The judgment appealed from is affirmed.

(The other judges concur.)

(14 Or. 317)

STARKS v. STAFFORD.

(Supreme Court of Oregon. December 20, 1886.)

1. APPEAL-JUSTICES OF THE PEACE-NOTICE-SUFFICIENCY-JUSTICES' CODE OR. 3 69. "Notice," in the sense used in the Justices' Code Or. ? 69, as to notice of appeals, simply means making known to the adverse party the fact that the appeal is taken; and if the motion accomplishes this, and is in writing, the statute is complied with; and where, in an action before a justice, the plaintiff, in the complaint and answer. is described as Amanda H. Starks, and in the notice of appeal as A. H. Starks, the cause being otherwise described correctly, such a discrepancy is no cause for dismissal.

2. SAME-UNDERTAKING ON APPEAL-AFFIDAVIT OF SURETY DEFECTIVE.

An affidavit of a surety on an undertaking for appeal from a justice's court, which reads as follows: being first duly sworn, say that I am a resident householder under the state of Oregon, and am worth the sum of P. M. COFFIN,' -is not in compliance with the law, and the appeal will be dismissed for the defect.

Robert Eakin, for appellant. Wm. M. Ramsey and J. W. Shelton, for respondent.

LORD, C. J. This action was brought in a justice's court, and resulted in a judgment against the defendant, from which he appealed to the circuit court; but, on motion of the plaintiff, his appeal was dismissed for insufficiency of the notice and return of service, and from the judgment of that court dismissing his appeal this appeal is taken. The following is a copy of the notice of appeal and return:

"IN THE JUSTICE'S COURT OF THE STATE OF OREGON FOR UNION PRECINCT AND COUNTY.

"A. H. Starks, Plaintiff, vs. Wm. M. Stafford, Deft.

"To A. H. Starks, Plaintiff, and T. H. Crawford, her Attorney: You will take notice that the defendant in the above-entitled action appeals to the circuit court of the state of Oregon for Union county, from the judgment rendered against the defendant, William M. Stafford, and in favor of said plaintiff, A. H. Starks, on the thirteenth day of December, 1884, in the above-named justice's court, by O. F. BELL, justice, for the sum of $84, and costs and disbursements taxed at $29.40.

"R. EAKIN, Attorney for Deft."

"State of Oregon, County of Union-ss.: I hereby certify that I served the annexed notice on the within-named A. H. Starks, within this county and state, on the seventeenth day of December, 1884, by delivering to her in person a copy of said notice of appeal, certified to by me as sheriff; and I further certify that I also served a copy of said notice on her attorney, T. H. Crawford, by delivering to him in person a copy of said notice of appeal, certified to by me as sheriff, on the seventeenth day of December, 1874.

"A. L. SAUNDERS, Sheriff."

The title of the cause in the complaint and the answer is: "In the justice's Court for Union Precinct, Union County, Oregon. Amanda H. Starks, Plaintiff, vs. Wm. M. Stafford, Deft." In the notice of appeal the plaintiff is written, "A. H. Starks, Piff.;" but who could look at the transcript, appeal, and all other proceedings, and not know that the plaintiff in either instance is one and the same person, it is difficult to comprehend. It is hardly necessary to make any comment upon the grounds of the alleged dismissal. The whole matter in respect to notices of appeal from justices' courts, and the service indorsed thereon, was quite recently examined by STRAHAN, J., in Lancaster v. McDonald, ante, 374, a case in which the notice and service was much less definite than any particular which can be noted here, and in which he said: "Notice,' in the sense here used, [section 69, Justices' Code,] simply means making known to the adverse party the fact that the appeal is taken. If the motion accomplishes this, and is in writing, the statute is complied with."

There is, however, another objection to which our attention has been brought that is more serious. It is the defect in the affidavit of the surety upon the undertaking for appeal. It reads as follows:

"State of Oregon, County of Union-ss.: -, being first duly sworn, say that I am a resident householder under the state of Oregon, and am worth the sum of P. M. COFFIN."

This is not a compliance with the law, and the judgment must be affirmed.

STRAHAN, J., did not sit in this case.

(2 Ariz. 246)

TERRITORY ex rel. GOODRICH . BASHFORD, Treasurer, etc.

(Supreme Court of Arizona. January 24, 1887.)

COUNTIES-COUNTY TREASURER-SHORTAGE IN ACCOUNTS -APPORTIONMENT OF LOSS BETWEEN COUNTY AND TERRITORY.

On the default of a county treasurer, having a shortage of moneys collected both for the county and the territory, the shortage will be apportioned between them according to the amount each is entitled to receive of the taxes collected.

Briggs Goodrich, Atty. Gen., for petitioner. Herndon & Hawkins, for respondent.

BARNES, J. This is a petition for a writ of mandamus requiring the treasurer of Yavapai to turn over to the treasurer of the territory moneys alleged to be in his hands belonging to the territory. It appears that the present treasurer went into office the first of January, 1887, and that he received, as funds in the hands of his predecessor, the sum of $57,230.88, which he now holds. It also appears that the amount of money which should have been turned over to him is $65,108.76, of which the amount due the territory would have been $16,108.07, and the amount due the county of Yavapai would have been $49,604.69, so that there is a balance still due from the late treasurer to the defendant of the sum of $8,481.88. It was urged that the county should be paid the full amount of $49,604.69, and that the balance of the $57,230.88 be paid to the territorial treasurer. It is also urged that the shortage of $8,481.88 should be apportioned between the territory and county, and it is urged by the attorney general that the territory should be paid in full, and that the county should bear the loss. It is true that the county treasurer is a county officer, and that his bond is approved by the board of supervisors of the county. For some purpose, he is the agent of the county, but as to funds in his hands he is, in the same sense, an agent of any branch of the government whose funds he may have. He is rather the custodian of funds which he may have officially, and the trustee for the benefit of whatever branch of the government may have funds with him.

A failure by the treasurer to pay over funds to whomsoever has the legal right to receive them will subject him and his sureties to action "by the territory, or any person injured or aggrieved." Acts 1883, p. 157. His bond is made payable to the territory. The territory and county have each the right to recover on the official bond of a county treasurer for money in his hands due either. In this case we have a gross sum in the hands of the present treasurer. He can be compelled to account for no more than the funds in his possession. The gross sum falls short of the amount due the county and territory. The amount so short is due from the late treasurer. It is manifestly unjust that the whole of his shortage should fall upon either. Equity requires that each should bear its proportion of the loss, and each can enforce its rights against the late treasurer for the balance due. Of taxes collected, it appears that the territory is entitled to sixty-five and one-half cents out of every three dollars. Treating the amount in the hands of the treasurer at this time as money collected, there is due the territory $12,495.40, which is the amount the defendant will be required to pay to the territorial treasurer. PORTER, J., concurs.

(71 Cal. 550)

HALL v. SUPERIOR COURT, EL DORADO CO. (No. 11,013.)

(Supreme Court of California. January 18, 1887.)

1. APPEAL FROM JUSTICE'S COURT-FILING AND SERVICE OF NOTICE AND UNDERTAK ING-CODE CIVIL PROC. CAL. 22 974, 978.

Under Code Civil Proc. Cal. 22 974, 978, it is not necessary that the notice and undertaking on appeal from a justice's court to the superior court should be filed before service thereof.

2. CERTIORARI-WRONGFUL DISMISSAL OF APPEAL.

If an appeal from a justice's court is erroneously dismissed by the superior court, the error may be remedied, and the cause reinstated by certiorari.

Commissioners' decision. In bank. On certiorari.

Geo. C. Blanchard and Chas. A. Swisler, for petitioner. Irwin & Irwin, for respondent.

FOOTE, C. On the nineteenth day of November, 1885, this court ordered the issuance in this cause of an alternative writ of certiorari to the superior court of El Dorado county. 8 Pac. Rep. 6, 509. Upon the return of the