tion. Section 21 of the town charter does not purport to impose this duty on the city recorder, or to add to or enlarge his powers or duties in any manner whatever. His duties are specially provided in the charter, and no provision is made for his deciding or participating in the decision or determination of the result in case of a tie in the election of a city officer.

And, again, the general laws of the state regulating and governing elections contain different provisions for deciding a tie vote. Thus, where the vote is a tie on candidates for the legislature, the law requires that a new election be had; while in case of county or precinct officers it is to be decided in accordance with the provisions of section 2539. Now, if section 21 of the charter has the effect contended for, which of these provisions is to apply to the case in hand? It is true, a city marshal is not a member of the legislature, neither is he a county or precinct officer; and, before either of these provisions can be made to apply to a case like the one before us, the courts must do some judicial legislation under the guise of construction. But why pursue this subject further? Enough has been said, we think, to show that the law does not specially enjoin upon the defendant, as a duty resulting from his office, the performance of the act which it is sought to coerce by this proceeding.

For these reasons, it follows that the judgment of the court below must be reversed, and the cause remanded, with directions to dismiss the petition.

(34 Or. 1)

NICKERSON v. NICKERSON, (Supreme Court of Oregon. April 5, 1897.) APPEAL ABATEMENT.

An appeal by a husband from a decree for divorce, whereby the wife became entitled to one-third of his property, does not abate by his death, but survives to his heirs.

Appeal from circuit court, Linn county; H. H. Hewitt, Judge.

Action by Elizabeth M. Nickerson against Hugh Nickerson, in which there was a decree for plaintiff, from which defendant appealed. Both parties move to dismiss the appeal, on a suggestion of appellant's death. Denied.

N. M. Newport and M. C. George, for appellant. J. K. Weatherford, for respondent.

WOLVERTON, J. The plaintiff on January 27, 1896, obtained a decree of divoree against the defendant, and thereby the title to an undivided third of defendant's real property. The defendant sought a divorce, also, by cross bill, which was dismissed. After an appeal had been perfected, the defendant died, and both parties, by their respective attorneys, upon suggesting his death, filed motions to dismiss the appeal, but for very different purposes. Counsel for defendant claims that his death abates the suit,

and that this court should dismiss the appeal, with directions to the court below to dismiss the suit, so that the relation of the parties would then stand as if no suit had ever been begun or decree rendered, while the plaintiff claims that defendant's death abates the appeal only, and that the decree of the court below remains in full force and effect, as a final determination of the rights of the parties thereto. Neither position can be maintained. In Day v. Holland, 15 Or. 464, 15 Pac. 855, it was decided that under the code procedure an appeal from a decree does not break it up nor vacate it, and that it may be carried into execution notwithstanding the appeal, unless stayed by a supersedeas undertaking. We are aware that there is a strong dissenting opinion in the cause cited, wherein cogent reasons are given why the old equity practice should still prevail in that regard, notwithstanding the innovations of the Code; but we feel bound by the prevailing opinion, and are constrained to follow it as a precedent. It is provided by statute that "no action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue"; and that "an action for a wrong shall not abate by the death of any party, after the verdict has been given therein, but the action shall proceed thereafter in the same manner as in cases where the cause of action survives." Hill's Ann. Laws Or. §§ 38, 39. These appear to be all the statutory provisions pertaining to the subject. It is quite apparent, from the very nature of things, that the cause of suit does not survive the death of a party where the only relief sought is a dissolution of the marriage relations, for death effectuates more surely the very end which it is the especial purpose of the suit to accomplish. As was said by Cotton, L. J., in Stanhope v. Stanhope, 11 Prob. Div. 103, 105, "It would be a singular thing, if, after the marriage had been dissolved by death, there were power to declare it at an end on another ground." The authorities are uniform upon this proposition. See Barney v. Barney, 14 Iowa, 189; Wilson v. Wilson, 73 Mich. 620, 41 N. W. 817; Kirschner v. Dietrich, 110 Cal. 502, 42 Pac. 1064; Pearson v. Darrington, 32 Ala. 253; McCurley v. McCurley, 45 Am. Rep. 720. But, where the consequences of the divorce are such as affect the property rights of the parties to the suit, the heirs or personal representatives may have such an interest in the litigation as that the cause will survive, not for the purpose of continuing the controversy touching the right of divorce within itself, but for the ascertainment of whether the property has been rightfully diverted from its appropriate channel of devolution. The present case furnishes a good illustration. Had the defendant died prior to the divorce, his real property would have descended to his heirs, subject to his widow's

right of dower, but under the decree she obtains an undivided one-third interest absolute therein,-results of very different significance. So that the heirs have an interest in continuing the controversy, to determine whether they have been rightfully or wrongfully affected in their property rights. See Thomas v. Thomas, 57 Md. 504; Downer v. Howard, 44 Wis. 82. It has been suggested that the relief which the statute affords, by giving the prevailing party in the suit one-third interest in the lands of the spouse, is but an incident to the divorce, and operates as a penalty for a violation of the marital relations. And so it is, but it does not follow that the suit, after divorce granted, or even that the appeal, abates upon the death of a party thereto. At common law the general rule is that criminal actions abate with the death of the accused, but if the crime be that of treason or felony, which works an attainder, the heirs or personal representatives may prosecute an appeal to reverse the attainder,-State v. Martin (Or.) 47 Pac. 196,-although the forfeiture is but an incident of the action. The cause was permitted to survive to prevent a wrongful devolution of the property of the deceased should It appear that the judgment of attainder was erroneous. The analogy is apparent without elucidation. The clause of the statute preventing either party from contracting marriage with a third until the period allowed for the appeal has expired is a wise precautionary measure to prevent the evil results which might arise from conflicting marriage relations should the decree of the court below be reversed, but was not intended to suspend the decree. Such a decree has the "effect to terminate the marriage," and its finality must be governed and determined by the same rules as are applied in other suits in equity. From these considerations, we conclude that the suit did not abate by the death of the defendant, except as it pertains to the cross bill, neither does the appeal, but that the cause and the appeal both survive to the heirs of the deceased, and they may prosecute the cause in this court for the purpose of determining whether the divorce was rightfully granted, to the end that conflicting property rights, as between them and the plaintiff, may be settled and determined. Both motions will therefore be disallowed.

(30 Or. 569)

MCELVAIN v. BRADSHAW, Circuit Judge, et al. 1

(Supreme Court of Oregon. April 5, 1897.) BILL OF EXCEPTIONS-TIME FOR FILING-MANDAMUS TO COMPEL ALLOWANCE.

The discretion of the court in refusing to settle and sign a bill of exceptions in a criminal case, after the expiration of the time fixed, and in the absence of any previous application for an extension of time, cannot be controlled by mandamus, on the ground that appellant's default arose from his inability to obtain a copy

1 Rehearing pending.

BEAN, J. This is an original proceeding in this court, by mandamus, to compel the judge of the Seventh judicial district to settle and sign a bill of exceptions in a criminal action. The facts, as shown by the alternative writ, answer, and accompanying affidavits, so far as material to any ques tion before us, are, in substance, that on October 6, 1896, the petitioner was convicted in the circuit court for Sherman county of the crime of forgery, and on the following day sentenced to the penitentiary for the term of two years. During his trial, numerous exceptions were taken to the rulings of the court, but they were not reduced to writ ing at the time, and his counsel asked for and was allowed 30 days after the term in which to prepare and tender a bill of exceptions, but they allowed it to expire without doing so. Thereafter, and on the 1st of December, 1896, what purports to be a bill of exceptions, a copy of which is annexed to and made a part of the petition, was tendered to the trial judge; but he refused to settle or allow it, because, as stated in his answer to the alternative writ, "the plaintiff and petitioner herein and his attorneys, and each of them, had been guilty of carelessness, and that the court had no right to excuse such carelessness on the part of the attorneys in reference to the order of the court, as it would destroy the effect and power of the orders of the court, and place a premium on carelessness," and "that the plaintiff and petitioner, nor his attorneys or either of them, have never applied to or asked this defendant for an extension of the time within which to prepare and present said bill of exceptions, but have carelessly and negligently allowed the time to go by, without preparing or presenting the same, or asking for an extension of time in which to do so, and that this defendant was at all times within the time fixed by said order ready and willing to sign and file a proper bill of exceptions in said case, and was willing, upon a proper showing, to have extended the time within which said bill of exceptions could have been presented, but the plaintiff and petitioner, and his attorneys, and each of them, wholly disregarding said order, carelessly and negligently failed and refused to prepare and present said bill of exceptions within the time fixed by said order, or to ask within said time for an ex. tension of time in which to do so."

It is well settled that mandamus lies in a proper case to compel a trial judge to settle

W. S. McFadden, for appellants. F. D. Chamberlain, for respondent.

WOLVERTON, J. This is a creditors' suit to set aside a chattel mortgage executed by the defendant S. N. Wilkins to his wife, Mary A. Wilkins, and also an assignment subsequently made by Wilkins to the defendant Johnson. Plaintiff's contention, comprehensively stated, is that the mortgage is void upon the alleged ground that the mortgagor was allowed to retain possession of the mortgaged property, and to sell and dispose of the same for his own use and benefit in the usual course of trade; and that the execution of the mortgage was part of a preconcerted scheme to effect a general assignment for the benefit of creditors, but with a preference to Mrs. Wilkins; and hence that the assignment is also void. The facts underlying the contention are, in brief, as follows: On January 13, 1894, the defendant Wilkins was the proprietor of a furniture store in Corvallis, and largely indebted to sundry creditors. The representative of the Portland creditors called upon him at noon of that day for the purpose of obtaining security for the payment of their demands, and he was led to believe that unless he made a satisfactory settlement they would attach. During the interview Wilkins gave a statement of his assets and liabilities, but concealed the fact that he was indebted to his wife. Going home to lunch shortly after, he told his wife of his financial condition, and the requirement of these creditors, and it was agreed that he would at once give her a chattel mortgage upon the stock of furniture to secure the payment of a note for $600 executed by him to her August 1, 1892, and in pursuance thereof the mortgage was given, and delivered to her, and filed in the clerk's office at 3:45 p. m. The representative remained in Corvallis until the 15th, when Wilkins went with him to Portland, avowedly for the purpose of effecting a settlement with those creditors, but in the meantime said nothing about the chattel mortgage he had given his wife, of which the creditors had no knowledge until the next day, the 16th, when the fact was disclosed through a mercantile agency. On the 17th, Wilkins entered into a written contract with the plaintiff, acting in behalf of such creditors, by which he agreed to pay, and plaintiff agreed to accept, 75 cents on the dollar in full of such indebtedness, 25 per cent. payable in cash January 24th, and the balance, or 50 per cent., in secured notes. On January 23d Wilkins wrote to plaintiff that it was impossible for him to comply with his agreement. On the 24th, plaintiff caused the store to be attached, and on the 25th Wilkins made the assignment in question.

We will first consider the present status and legal effect of the chattel mortgage, and then the assignment. It has been decided in this state that when it appears either upon the face of the mortgage or by parol evidence aliunde that the mortgagee of personal proper

ty has given the mortgagor unlimited power and authority to dispose of the property in the usual course of trade, for his own use and benefit, the mortgage is void as to attaching creditors. Orton v. Orton, 7 Or. 478, and Jacobs v. Ervin, 9 Or. 52. In the latter of these cases there was a separate agreement between the mortgagors and the mortgagees concurrent with the execution of the mortgage that the mortgagors should retain possession of the stock, and sell the same, as they had done before, for their own use, in the usual course of business; and in the former case the disposition of the mortgaged property by the mortgagor for his own use was permitted without any explicit agreement to that effect at the inception of the mortgage. In a later case (Currie v. Bowman, 25 Or. 364, 35 Pac. 848) it was held that a chattel mortgage is valid which, by its terms, permits the mortgagor to retain possession with power to sell, but which requires him to account to the mortgagee for the proceeds, less expenses of sales. These cases indicate very fairly the policy and trend of the law in this state in so far as it is involved by the facts before us. The intent and purpose of the parties in giving and receiving a chattel mortgage is the test of its validity at its inception, but, as it is a thing capable of modification by subsequent agreement, either expressed or implied, by co-operative and willful disregard of its terms and conditions, it is a prerequisite to its continuing validity that good faith and fair dealing be maintained towards those whose interests may be affected by it. A chattel mortgage given primarily for the benefit of the mortgagor is void as against creditors from the beginning (Hill's Ann. Laws Or. § 3053), but, if given bona fide, and the parties, by their subsequent treatment of it, and the property covered by it, convert it into an instrument calculated to effectuate the same purpose, it is none the less fraudulent and void from the time such purpose is promoted. But where the mortgage has been seasonably and duly filed, want of good faith must be established by the party who attempts to overthrow it, as the presumption stands in favor of honesty and fair dealing. The mortgage in question is in the usual form, perfectly fair on its face, and permits the mortgagor to retain possession of the property, but expressly forbids any sale or disposal of it, or of any part thereof, by the mortgagor; so that, if there is any infirmity in the mortgage, it must be sought for in some extraneous agreement or subsequent treatment of it by the parties, from which we may infer a disregard of its conditions to the hindrance or detriment of creditors. The prior existence of the note, and that it was given for a valid demand, were practically conceded; but, if it were otherwise, we think the propositions are established by the proof. Mrs. Wilkins testified, in effect, that when the mortgage was given her husband told her that she could take charge of the store, and run it until she got her money out of it; that two days later, and after her

husband had gone to Portland, she did take charge of it by going in person to the store, and notifying the clerk of the condition of affairs, and assuming control. Thenceforth, and until the sheriff took charge on the 24th, she says she directed the management of the business, had charge of the receipts, and that they were disbursed only by her authority. When the sheriff attached, he found the clerk in charge, but Wilkins entered soon afterwards, procured some keys from the back end of the store, and gave them to him. The clerk, however, had one key, and Mrs. Wilkins another. All the witnesses who pretend to know anything about it concur in the statement that Mrs. Wilkins was about the store nearly every day from Monday, the 15th, until the attachment, and sometimes brought her lunch for noon, and remained continuously until evening. After Wilkins returned from Portland, on the 17th or 18th, he was also about the store until the attachment; but there is no testimony tending to show that he sold anything from the store himself, or that he obtained or used the proceeds of any sales. The business sign was not changed, and, barring Mrs. Wilkins' presence, the store was apparently conducted as it had formerly been. The evidence shows an understanding between the parties that Mrs. Wilkins should take charge of the property notwithstanding the condition that the mortgagor should remain in possession, and it may be said to be fairly established that she did actually assume possession and control, with the consent of her husband, and that she so retained it until the attachment. To say the least, it has not been established that he was permitted, with the knowledge or tacit consent of Mrs. Wilkins, to conduct the business in the usual course, as he had done before, or to use or appropriate the proceeds of sales for his own use and benefit, in disregard of the mortgage conditions. The creditors can only complain when the mortgage is executed or subsequently used as a shield for the special benefit of the mortgagor, and thereby hinders or delays due process of law in reaching the property, and subjecting it to the payment of valid demands. The mere fact that it may lessen their chances of realizing their claims in full does not of itself render the transaction fraudulent, if the mortgage is otherwise fair, and so treated; but it is the erection of a false muniment, not intended to secure the mortgagee so much as to ward off and defeat just demands, that works the iniquity, and to avoid which the law affords a remedy. The mortgage must be held to be valid unless it in fact constitutes a part of the general assignment subsequently made.

This court has several times, and quite recently, decided that a person in failing circumstances may prefer one creditor above another, and this he may do in any manner that he may see fit so long as he does not resort to a general assignment, or to devices which, being construed in unison, may be regarded as equivalent thereto, for the ac

complishment of the purpose, and this may now be regarded as the settled law of the state. Sabin v. Fuel Co., 25 Or. 15, 34 Pac. 692; Jolly v. Kyle, 27 Or. 95, 39 Pac. 999; O'Connell I Hansen, 29 Or. 173, 44 Pac. 387; Inman, Poulsen & Co. v. Sprague (Or.) 47 Pac. 826. If, however, the execution of the mortgage to Mrs. Wilkins is so inseparably connected with the act by which the general assignment was effected as that they may stand together, and constitute in reality but one act or transaction, the assignment is void, as creating a preference. The statute expressly provides that no general assignment made by an insolvent debtor for the benefit of creditors shall be valid unless made for the benefit of all, and in proportion to the amount of their respective demands. Hill's Ann. Laws Or. § 3173. The preferment of one or more of the creditors, while assuming to make such an assignment, is in violation of the statute; hence it is that the assignment must fail, because the act by which it is sought to accomplish the purpose is unlawful. Nor is an act in disregard of law any less a violation thereof because accomplished by indirect or devious methods. See Inman, Poulsen & Co. v. Sprague, supra, and O'Connell v. Hansen, supra. In point of time, the instrument creating the assignment was executed 12 days later than the mortgage. This, however, is but a single circumstance attending the transaction. Before giving the mortgage, Wilkins told the Portland representative that if his property was attached he would have to make an assignment, while in Portland he told the creditors the same thing in purport, and, again, on the 24th,-immediately prior to the attachment, that, if the creditors would give him time, he could pull through, but, if not, he would have to make an assignment; and it seems he constantly foreshadowed the assignment as a result which he would be compelled to bring about if pressed by his creditors. With reference to the mortgage, he said in Portland that he owed his wife the money, was afraid the creditors "meant to jump him," and that he thought she ought to be secured. Finally the attachment came, and then the assignment, and it is urged that Wilkins contemplated an assignment from the first, and that each step was but a pavement of the way to that end, and ought to be so considered. But we cannot hold this, under the testimony. The threatened assignment, if such it may be termed, was always conditional, and made dependent upon the attachment of his property at the suit of his creditors, indicating that he had not formed a fixed purpose to assign unless the event happened, but it was evident that he intended to secure his wife in any event. Suppose he had said in the first place, "I owe my wife, and I mean to give her a mortgage on my stock of furniture at once, to secure her; but, if the other creditors attach, I shall assign"; and suppose the creditors had then insisted