record some act of the court done at a former term which was not then carried into the record; and such entry is retrospective and has the same force and effect as if entered at the time when rendered, except as to third parties having intervening rights. Cleveland Leader Printing Co. v. Green, 52 Ohio St. 487, 40 N. E. 201, 49 Am. St. Rep. 725; McNamara v. N. Y., L. E. & W. R. Co., 56 N. J. Law, 56, 28 Atl. 313; Ferrell v. Hales, 119 N. C. 199, 25 S. E. 821. It was held in Doughty v. Meek et al., 105 Iowa, 16, 74 N. W. 744, 67 Am. St. Rep. 282, that such entry validates all prior proceedings, including the issuing of execution. Los Angeles County Bank v. Raynor, 61 Cal. 145; Emrich v. Gilbert Mfg. Co., 138 Ala. 316, 35 South. 322; Lowenstein v. Caruth, 59 Ark. 588, 28 S. W. 421. Although such entry validates the execution issued therein, it could not operate to create a lien from a date earlier than its actual entry to affect intervening rights of third parties. McNamara v. N. Y., L. E. & W. R. Co., 56 N. J. Law, 56, 28 Atl. 313. As between Richardson and Davidson, the nunc pro tunc entry is retrospective, and has the same force and effect as if entered at the time the judgment was rendered (Freeman, Judgments [3d Ed.] § 67), and, unless they have rights intervening prior to the date of such entry, its effect cannot be questioned by third parties.

Plaintiff's interest in the land on December 5, 1898, the date of the entry of the judgment, was not such as to make her an intervening party within the meaning of the law. Her inchoate right of dower was increased by the legislative act, but she did not act upon conditions then existing, nor did she pay value or otherwise change her condition upon faith in the record, but was only a possible beneficiary under the statute. We understand that, to be protected from the effect of the nunc pro tunc entry, plaintiff must have been in the position of a bona fide purchaser for value. Freeman, Judgments (3d Ed.) §§ 66, 67; Leonard v. Broughton, 120 Ind. 536, 22 N. E. 731, 16 Am. St. Rep. 347, 355. In this case it is held: "It appears, from the fact averred, that the judg ments in favor of the appellants were rendered upon pre-existing obligations. Their rights were fixed prior to the rendition of the judgments, and it does not appear that they were misled, or that they parted with anything of value, or acquired any rights during the interval which elapsed between the date the judgment should have been properly entered and the making of the nunc pro tunc entry, except that they acquired a judg ment lien; and the rule is that the general lien of a judgment creditor upon lands of his debtor is subject to all equities existing against the lands of the judgment debtor in favor of third persons at the time of the recovery of the judgment." However independent of the effect of the entry of the judgment, the contract between Richardson

and Davidson is the thing protected by the Constitution, and the act, increasing the dower, is void as to such contract without reference to the entry of judgment or the creation of a lien, and therefore it is immaterial whether plaintiff's inchoate rights under the dower act can be affected by a nunc pro tunc entry or not. Defendant's right antedates the judgment and is such that the Legislature cannot impair it, and plaintiff cannot complain of the nunc pro tunc entry, as the dower statute is without effect as to defendant's contract, regardless of the judgment. Patton v. Asheville, 109 N. C. 685, 14 S. E. 92; Edwards v. Kearzey, 96 U. S. 595, 24 L. Ed. 793; Bronson v. Kinzie, 42 How. (U. S.) 311, 11 L. Ed. 143; Gunn v. Barry, 15 Wall. (U. S.) 610, 21 L. Ed. 212.

Therefore, the decision of this court heretofore rendered must be set aside, and the decree of the lower court is hereby modified as follows: That the plaintiff is entitled to dower in the lands described in the complaint to the extent of one-third part thereof, and the cause will be remanded to the lower court, with directions to proceed with the assignment of such dower in manner provided by law.

(50 Or. 1)

STATE V. CARMODY. (Supreme Court of Oregon. Oct. 22, 1907.) 1. INTOXICATING LIQUORS-INDICTMENT-SUFFICIENCY-PURPOSE OF SALE.

Local Option Law, § 15 (Laws 1905, p. 48), provides that when an election held under this law has resulted in favor of prohibition, and the county court has made the order declaring the result and the order of prohibition, any person who shall thereafter within the prescribed bounds of prohibition, sell, exchange or give away, with the purpose of evading the law, any intoxicating liquor, shall be subject to prosecution. Held, that an indictment which follows the language of the statute is sufficient, though not averring that the liquor was sold for beverage purposes, since indictments for misdemeanors created by statute are sufficient if they charge the offense in the words of the statute, subject to the qualification that the offense must be set forth with sufficient certainty to apprise the accused of the offense imputed to him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, § 229: vol. 27, Indictment and Information, §§ 289-294.]

2. INDICTMENT STATUTORY OFFENSES-NEGATIVING EXCEPTIONS.

Exceptions and provisos in a criminal statute need not be negatived in indictments charging a violation thereof, unless they be descriptive of the offense or a necessary ingredient in its definition.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 295298.]

Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge.

On petition for rehearing. Petition denied, For former opinion, see 91 Pac. 446.

BEAN, C. J. It is claimed that the indictment in this case is insufficient because it is

against said estate for the advancement of $1,296 to decedent, and requiring that defendant account for rents and profits of said lands; that he return to plaintiffs $1,500, used by him in settling said estate debts; and that he apply the rents and profits of the land in payment of the $3,000 mortgage until the same is paid. An answer was filed to this complaint, in which defendant claims the realty as tenant by curtesy free from any liabilities for debts of the estate. A reply denying these allegations was filed, and at the trial much testimony was taken upon the issues raised, from which findings were made by the court in favor of plaintiffs, and a decree rendered thereon.

The principle question for our consideration is whether defendant's conduct in the management of the estate, in obtaining the plaintiffs' money, and in the final settlement of the estate, as against plaintiffs, was such as to constitute fraud upon them. The final account is a very loose and inaccurate report. It should show all sales of personal property, to whom sold, and the price. Property not sold should be listed and shown to be on hand for distribution. If sheep were killed by dogs, it should be shown by a statement of facts in the report, independent of the charge in the statement of the account. It should It should also show the estate debts, to whom due, and how paid. The evidence in this case discloses that $118.75 was expended by the defendant for fencing and for insurance on the hop house, paid from the money of plaintiffs, and this is not mentioned in the report. If defendant's curtesy estate gives him possession to the exclusion of the administrator, as he claims in this suit, then such items are not chargeable to the estate at all, but must be paid by the tenant, which is also true as to the expense of drawing the lease, charged against the estate at $7.50, which was for defendant's sole benefit. In the final account, the administrator also takes credit for the "present value of the estate," $16.961.50, viz., $157.50, increased value of the lands over the appraisement, evidently done to make his account balance, and the error for that amount is in his favor. Nor does he account for the whole of the personal property, nor the increase thereof. These errors could not be taken advantage of now simply as errors in the account, but it appears that, on account of the fiduciary relations between the defendant and plaintiffs and his efforts to lull them into inaction, and thus prevent them from discovering these errors, it operates as a fraud upon them. It is also clear that he induced the plaintiffs to advance to him $1,500 with which to pay debts of the estate and other expenses of administration. with the understanding that upon the close of the administration they would come into possession of the real estate free from his curtesy estate. This is corroborated by his own testimony at page 101 of the transcript, where he says: "And she (Mrs. Reed) spoke about it (a deed

from defendant to plaintiffs) and wanted to know if I didn't think I had better deed the property over to them. I told her her sister had gone to California, and it would be time enough to talk about it when she came back"

showing that he was encouraging them in the belief that they were to have the land. Upon the same influence and inducement and the fiduciary relations existing between them, and plaintiffs' confidence in defendant's statements that it was all right, they were led to allow the final account to be settled without examination thereof, and without consulting any other adviser in regard thereto. At the time of the death of the decedent, plaintiff's were members of the family and household of defendant and decedent, and after the death of the mother they continued members of the family of defendant until the settlement of the estate, except that they were each absent a short time. At all times the most friendly relations continued; plaintiffs evidently leaving all business relating to the estate entirely to defendant. They acted upon his advice or suggestion in all matters relating thereto, and were ignorant of the legal effect of putting their money into the estate and of their rights therein.

The rule that a person is guilty of nezligence in relying upon statements or representations of another as a basis of a contract or transaction does not apply to parties occupying a relation of trust or confidence, such as parent and child, or guardian and ward. 14 Am. & Eng. Ency. Law (2d Ed.) 122; Id. 172; Baldock v. Johnson, 14 Or. 542, 13 Pac. 434. By reason of these conditions, plaintiffs have been induced to advance their money to the estate, to acquiesce in the final account without examination, and to withhold their claims against the estate, and have thus been depriv ed of their rights in regard thereto, resulting in a fraud upon them. Therefore we think the decree of the county court settling the final account should be vacated, and the estate reopened, and plaintiffs given an opportunity to present their claims against the same, and such other proceedings as may be proper in the administration of the estate. As to whether the rents of the realty during the administration should go to the administrator, we deem it unnecessary to decide now, and therefore indicate no opinion upon that question.

The decree of the lower court therefore is affirmed in so far as it directs that the estate be reopened and plaintiff's given a hearing therein.

Appeal from Circuit Court, Clatsop County; Thomas A. McBride, Judge.

Action by John Waterhouse and another against Clatsop county and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Gilbert L. Hedges, Dist. Atty., and John C. McCue, for appellants. John H. & A. M. Smith, for respondents.

BEAN, C. J. The question for decision on this appeal is whether the county clerk is required to extend the taxes levied for the year 1907 on the original assessment roll, and deliver such roll, with a warrant for the collection attached, to the tax collector, or whether he shall make a transcript of the original roll, extend the taxes thereon, and deliver the same, with the tax warrant attached, to such officer. Prior to the act of February 28, 1907 (Laws 1907, p. 453), the law required the county clerk to make a certificate of the several amounts apportioned to be assessed upon the taxable property of his county and deliver the same to the sheriff, together with a transcript of the original assessment roll, with the amount of taxes extended and entered thereon, and with a warrant authorizing the collection of such tax attached. B. & C. Comp. § 3090. On February 28, 1907, an act was passed to provide a more efficient system for the levy and collection of taxes. Laws 1907, p. 453. By section 14 of this act the county clerk is to extend the taxes on the original roll in place of on a transcript thereof, as formerly, and deliver such original roll, with the taxes so extended and warrant attached, to the tax collector; and by section 80 it is declared that all laws heretofore in force are to continue in force and effect until all things and acts in and about the assessment, apportionment, and levy of taxes upon the basis of ownership of property on the 1st day of March, 1907, and the assessment, apportionment, levy, and collection of taxes and proceedings incident thereto, made or commenced prior to such date (except as specified in section 55), have been fully and duly performed, but that the taxes levied on the basis of ownership of property on March 1, 1907, shall be collected as in the act provided.

The object of this provision is plain. The assessment for the year 1907 was to be made on the basis of ownership of property on March 1, of that year, and therefore would be

28th could go into effect. It was consequently provided that such assessment should be made and the taxes apportioned and levied in accordance with the law in force at the time the making of the assessment was commenced. The taxes assessed and levied for the year 1906, and previous years, could not, in the nature of things, be all collected prior to the time the act of 1907 came into effect, and therefore it was provided that as to assessment, apportionment, levy, and collection of such taxes the law under which the same was made should continue in force. But there was no necessity for any such provision as to the collection of taxes levied on the as sessment of 1907, and hence it is provided that such taxes shall be collected in the manner provided in the act of February 28, 1907. The extension of taxes on the tax roll and the delivery of the roll, or a copy thereof, to the tax collector, with a warrant attached, is a step in the collection of the taxes, and not in the assessment, apportionment, or levy. The law has always carefully distinguished between the assessment, apportionment, and levy of taxes, and their collection, and the extension of the taxes upon the roll, or a copy thereof, has always been regarded as one step in the collection. Chapters 1 to 5, inclusive, of title 30, B. & C. Comp., relates to the assessment, apportionment, and levy of taxes, while chapters 6 and 7 govern their collection, and the provision for the extension of the taxes on a transcript of the roll and delivery of such transcript to the sheriff is part of chapter 6. The same distinction was recognized by the Legislature of 1907. It pass ed two acts in reference to assessment and collection of taxes-one to provide a more efficient and equitable system for the assessment of property for taxation (Laws 1907, p. 485), and the other a more efficient system for the levy and collection of taxes, and the provision in reference to the extension of the taxes on tax roll is found in the latter act (Laws 1907, p. 453).

We conclude, therefore, that the extension of the taxes on the tax roll is no part of the assessment, apportionment, or levy of the tax, but is a step in the process of its collection, and the clerk should extend the taxes for 1907 on the original assessment roll, and deliver such roll, with warrant attached, to the tax collector, as provided in act of 1907. Decree of court below will be affirmed.

(47 Wash. 342) PAYNE et al. v. WHATCOM COUNTY RY. & LIGHT CO. et al. (Supreme Court of Washington. Oct. 19, 1907.) 1. TRIAL-INSTRUCTIONS-FORM.

A court need not give requested instruc tions in any set form of language; it being sufficient to give their substance, if proper.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 664, 665.]

2. EVIDENCE-EXPERT TESTIMONY-WEIGHT.

A jury in a personal injury action may base a finding of permanent injury on ordinary testimony, though it is not sustained by the expert testimony.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 20, Evidence, § 2395.]

Appeal from Superior Court, Whatcom County: Jeremiah Neterer, Judge.

Personal injury action by Millie Payne and another against the Whatcom County Railway & Light Company and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Newman & Howard, for appellants. J. C. Allen, for respondents.

DUNBAR, J. This is an action for damages for personal injuries alleged to have been sustained by Millie Payne, one of the respondents, while a passenger on a street car in Whatcom county on the night of July 4, 1905. The injuries were sustained at a switch on the main line connecting the former cities of Fairhaven and Whatcom. The respondent Millie Payne was a passenger on a south-bound open car, with a step or running board extending the length of the car on each side of the seats extending crosswise. All of the seats were occupied, and the respondent Millie Payne, with many other passengers, was standing on the running board, holding onto vertical bars or handholds constructed for that purpose. The north-bound car was an open car of the same character and dimensions. When the south-bound car attempted to pass the north-bound car, which had stopped too close to the switch, the running boards overlapped, and Millie Payne was caught between them and sustained the injuries complained of. The exact relative positions of the cars is not material, for it is admitted that the motormen in control of the two cars were negligent, and that the company was liable for injuries actually sustained by the respondent Millie Payne; but it is denied that she was injured in the sum of $10,000, the amount sued for, or any other or greater sum than $100, which amount, together with accrued costs, it tendered into court. The cause was tried by a jury on the 14th of May, 1906, and a judgment rendered in favor of the plaintiffs in the amount of $5.000. Thereafter defendants moved the court for a new trial, which motion was sustained, providing, however, that if the plaintiffs filed their written consent to a reduction of the amount of the verdict to $3,000, the motion for a new trial would be denied. The plaintifs thereafter filed their written consent to such reduction. Judgment was entered in their favor for the amount of $3,000, and from such judgment this appeal is prosecuted.

It will be seen from the statement that the only questions involved are those which affect the amount of the judgment. The errors alleged are the giving and refusing to give

certain instructions and the rejection of testimony. It is urged that the court erred in refusing to give the following instruction proffered by the appellants: "You are instructed that it is your duty to try this case as fairly and impartially as though it were an action between two private persons, and it is your duty to disregard all appeals made by counsel to you solely with a view to exciting your prejudice against one of the defendants because it is a street railway corporation, if any such have been made, and that, while counsel have a right to criticise the testimony of the witnesses, they have no right to denounce the testimony of any witness as unworthy of credit, simply for the reason that such witness may have been in the employ of the defendant corporation; and such appeals and denunciations, if any such have been made. should be entirely disregarded by you in arriving at a verdict." And the further instruction: "In estimating the amount of the damages which the plaintiffs have sustained. you will not be permitted to award any greater or less sum by reason of the fact that the injuries were inflicted by the plaintiff Millie Payne having been caught between the cars of the defendant company. In other words, in estimating the damages, you should be guided by the extent of the injuries, and not by the cause which inflicted them. The plaintiffs are entitled to recover no more and no less than they would be, had the same injuries been inflicted in an accident in a shingle mill, sawmill, logging camp, or by an individual." It is so well established that it is scarcely worth repeating that a court cannot be compelled to give instructions in any set form of words or language, but that. when the substance of the instructions asked for, if they are proper instructions, is given, the duty of the court is ended.

A recurrence to the instructions actually given by the court shows that the substance of the instructions asked for was given by the court in this case. The court, among other things, said: "You are further instructed that in your deliberations upon this case it is your duty to try this case as fairly and impartially as though it were a suit between two private persons, and it is your duty to disregard all statements of counsel, made to the court in the presence and hearing of the jury upon any objections which may have been made to the introduction of testimony, or upon any argument which may have been made to the court upon any proposition of law, or anything the court may have said in passing upon such a proposition as was then presented, and determine this solely upon the testimony that has been offered and admitted before the court, in pursuance of the instructions which the court gives you upon the law." In answer to objections of counsel for the appellants in relation to statements that were made by counsel for the respondents, the court said: "The court will