and the order must be annulled." State ex rel. v. District Court, etc. (Mont.) 85 Pac. 367.

The effect of the ruling of the Montana Supreme Court was that, while the section of the Montana Code (section 1869) like our section 1034 did not provide, in terms for notice to the adverse party of the filing of a cost bill in the lower court, for costs awarded by the appellate court, still by analogy the provisions of section 1867-our corresponding section 1033-providing for the presentation and settlement of cost bills where judgments were obtained in the trial court controlled, and that the same notice required there to be given, should be given when it is sought to have costs awarded generally in the appellate court. specifically taxed in the lower court after the appellate judgment allowing them. We are satisfied with the reasoning in the, Montana Case, and with the conclusion reached in support of the constitutionality of the section in question, when considered in connection with the other section relative to the matter of taxing costs in the trial court to which we have referred. It is a reasonable and warranted construction which aids in securing to one the benefit of a judgment for costs given to him by the appellate court and of which he would be deprived, at least as far as section 1034 is concerned, were a different result arrived at. As both sides have presented this matter on the merits we have so disposed of it regardless of any question as to whether this application for a writ is the proper remedy.

The petition for the writ is dismissed.

We concur: HENSHAW. J. SLOSS, J. MCFARLAND, J. ANGELLOTTI, J.

SHAW, J. I dissent. I do not think it is necessary to declare section 1034 unconstitutional. Section 1033, in my opinion, was not intended to apply to the costs on appeal, and section 1034 is valid without aid from the preceding section. The fact that no notice is expressly required in section 1034 should not render the provision invalid. Nor should it be held that the provision that an execution for such costs may be issued without notice, invalidates the entire section unless the clause of section 1033 in regard to notice is read into section 1034 also. It does not follow from the lack of an express provision in the Code for a previous or contemporaneous notice, that the entire proceeding would be unconstitutional. The court has inherent power to afford an ample remedy for any injustice that may be attempted by the filing of an excessive cost bill. The entire argument of the prevailing opinion is based on a false premise which is not stated, namely, that the superior court cannot entertain any motion, nor afford any relief in a case by

any procedure, unless the motion or mode of relief is prescribed in the Code or by some statute. This I hold to be a mistake. The superior court is a court of general jurisdiction, possessing all the usual and ordinary powers of the former courts of law and equity, and it may, therefore, in any emergency not provided in the Code, follow the practice of the common law and chancery courts in similar emergencies, and may adopt any procedure suitable to the exigencies of the case over which it has jurisdiction. Code Civ. Proc., § 187. The statute allows the prevailing party on appeal to file his cost bill without notice. out notice. This, of necessity, cannot conclude the adverse party. An unsettled question, the correct amount of costs, remains for determination in such a case, and the court retains jurisdiction for that purpose. The losing party may at any reasonable time thereafter. either before or after the issu ance of an execution, avail himself of this jurisdiction and move the court to retax the cost by striking out the items not allowable, and reducing those which are excessive. And no doubt proceedings on execution could be stayed pending the determination of such motion, and the execution could be corrected after the motion was decided. The only restriction upon the right to this motion is that the party must not, after he has notice of the bill, unreasonably delay moving to retax, else he may be defeated by his laches. All these matters, in the absence of statutory provisions on the subject, are within the inherent power of the court. No statute is required to give the court the necessary rower to protect the rights of parties to the litigation. In many of the states the costs are taxed by the clerk, without notice to either party, and no statutory procedure for retaxing is provided, and yet motions by either party to retax such costs are among the most frequent of proceedings in those courts, and the power to decide them has never been doubted. The time within which they must be made is a matter for adjustment in such states by judicial decision. The same power must exist in this state in cases for which the Code makes no provision. The courts are as capable as the Legislature of framing a rule and procedure that will be reasonable and just to all parties, and no evils are to be apprehended from the exercise by the courts of the power in this respect which the Legislature has committed to them by section 187 aforesaid. In my opinion the court below should not have granted the motion to strike out the costs, except upon a showing that they were not legally allowable. The appellant has followed the plain letter of the statute and the effect of the majority decision will be that she will be now entirely deprived of her costs, and this is done by means of a strained and unnatural construction adopted to avoid a difficulty which does not exist.

(149 Cal. 790)

UNION COLLECTION CO. v. SUPERIOR COURT OF CITY & COUNTY OF SAN FRANCISCO et al. (S. F. 4,608.) (Supreme Court of California. Oct. 2, 1906.) 1. COURTS JURISDICTION STATUTORY PROVISIONS.

Code Civ. Proc. § 187, provides that, "when jurisdiction is by the Constitution or by this Code, or by any other statute conferred on a court or judicial officer, all the means necessary to carry it into effect are also given, and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or by the statute, any suitable process or mode of proceeding may be adopted which may appear most comformable to the spirit of this Code." Held, that this section does not confer jurisdiction, but merely enables the court to exercise a jurisdiction otherwise created.

2. DISCOVERY-JURISDICTION.

Const. art. 6, § 5, granting to superior courts jurisdiction in all cases in equity, confers on the court the power to compel a discovery in all cases in which under the established rules of chancery practice existing at the time of the adoption of the Constitution a party would have been entitled to this relief. 3. SAME-NATURE AND SCOPE OF REMEDY.

In an action against the stockholders of a corporation, plaintiff was unable to ascertain the whereabouts of all of the defendants, and subpoenaed a witness to appear before the court to give information as to the whereabouts of some of the defendants. Hela, that such a proceeding was not one for discovery, as matters sought to be discovered must be material to the existing suit or to one which is to be instituted.

4. SAME-EXAMINATION BEFORE TRIAL.

Plaintiff in an action against the stockholders of a corporation, being unable to ascertain the whereabouts of all of the defendants, subpoenaed a witness to appear before the court to testify as to the whereabouts of some of the defendants. Held, that the plaintiff was not entitled to examine the witness in such a manner or for such purpose, and the court properly refused to compel her to be sworn. [Ed Note.-For cases in point, see Cent. Dig. vol. 16, Discovery, § 10.]

In Bank. Application for writ of mandate by the Union Collection Company prayed to be directed against the superior court of the city and county of San Francisco and the Honorable James M. Troutt, judge thereof. Proceeding dismissed.

J. S. Reed, for petitioner. C. H. Sooy C. H. Sooy and Eastin, Sooy & Dorn, for respondents.

SLOSS, J. An alternative writ of mandate having been issued by this court, the respondents demur to the petition, and thus raise the question whether the following facts, set forth in the petition, are sufficient in law to authorize the granting of the relief sought: The Union Collection Company, petitioner herein, commenced an action in the superior court of the city and county of San Francisco against some 240 defendants, stockholders of the El Dorado Exploration Company, a corporation, to compel the payment by such defendants of the unpaid subscription price of their shares for the purpose of satisfying a judgment against said El Dorado Ex

ploration Company, held by petitioner. Summons was issued, and was served on some of the defendants, but petitioner has been unable to ascertain the whereabouts of many of the defendants, and these have consequently not been served, nor have they appeared in the action. In order to get the information necessary to enable it to make service, the petitioner filed in the superior court an affidavit alleging that it could not ascertain the whereabouts of many of the defendants not served except by examining persons connected with the El Dorado Exploration Company; that one of such persons was Mrs. Elizabeth M. Ustick, who refused to give any information which would enable the petitioner to cause summons to be served, and praying for an order requiring Mrs. Ustick to appear before the court to be examined "concerning her knowledge as to the whereabouts of the defendants not served." An order was made as asked, and a subpoena issued and served on Mrs. Ustick. She appeared at the time set and objected to the court proceeding in the matter, upon the ground that the court had no jurisdiction. The court sustained her objection, refused to cause her to be sworn, and ordered that she be discharged from further appearance in the matter. The purpose of the present proceeding is to obtain a writ of mandate directing the respondent court and judge to require Mrs. Ustick to be sworn as a witness and to give her testimony in respect to the matter stated in the affidavit. The sole question to be determined is whether the superior court of this state has jurisdiction to compel the defendant, or a stranger to a pending action, to appear before it, prior to trial, and be examined as to the whereabouts of certain defendants, in order that they may be served with summons.

It is not contended by the petitioner that the proposed examination of Mrs. Ustick was authorized by the provisions of the Code relative to the taking of depositions. On the contrary, the argument is that, because there is no specific statutory method applying to such a case as this, the court should compel the giving of the desired information in some suitable mode to be adopted by it. This position is based upon section 187 of the Code of Civil Procedure, which reads: "When jurisdiction is, by the Constitution, or by this Code, or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or by the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code." If the superior court, in which an action is pending, has jurisdiction to compel the giving of information as to the whereabouts of defendants whom it is desired to serve with summons, it may be assumed, for the pur

pose of this discussion, that the "process or mode of proceeding" employed was suitable and conformable to the spirit of the Code. But section 187 obviously does not attempt in itself to confer jurisdiction. It merely operates to enable the court to exercise a jurisdiction otherwise created. Tulare County v. Kings County, 117 Cal. 195, 203, 49 Pac. 8. We are thus brought back to the original question of the power of the superior court, by any mode of procedure, to compel the giving of the information here sought to be obtained from Mrs. Ustick. The alleged power is sought to be derived from the constitutional grant to the superior courts of jurisdiction in "all cases in equity" (Const. art. 6, § 5), including, as is claimed, the power to entertain proceedings in the nature of bills of discovery. It is not necessary here to decide the question adverted to, but not definitely determined, in Wright v. Superior Court, 139 Cal. 469, 73 Pac. 145, whether a bill of discovery can, under any circumstances, be maintained in this state. Whatever may be the ultimate conclusion on this mere matter of procedure, we have no doubt that the superior court, under the constitutional provision cited, has the power, by some sort of process, to compel a discovery in all cases in which, under the established rules of chancery practice, existing at the time of the adoption of the Constitution, a party would have been entitled to this relief.

Is the present case one for a discovery under these rules? We think not. A bill of discovery seeks the disclosure of facts within the knowledge of the defendant, or of papers in his possession, in aid of some other action or proceeding. The discovery may be sought in the same suit in which the ultimate relief is pursued, or it may be sought merely in aid of some other proceeding pending or to be brought. But whether the bill be for discovery and relief, or for discovery only, it is well settled that the matters as to which discovery is sought must be material to the existing suit or to the one which is to be instituted. 6 Ency. of Pl. & Pr. 740; Bisp. Prin. of Eq. (4th Ed.) § 560; 1 Pom. Eq. Jurisp. (3d. Ed.) § 201. See, also, many cases cited in 16 Century Digest, cols. 1991 & 1992. Here the action in aid of which the plaintiff claims the right to a discovery was already pending. The matters as to which disclosure is sought are in no way material to the issues presented by the main action in the court below, and a disclosure of them will not assist the plaintiff therein (petitioner here) in establishing its case. The facts constituting the cause of action are fully known to the plaintiff, and have been set forth by it in its complaint. What it seeks now is not the disclosure of facts relevant to the cause of action or which will assist in establishing it, but of facts, entirely collateral to the merits, which will enable it to bring defendants within the ju

risdiction of the court. No case has been cited which extends the right of discovery to a state of facts such as is here presented. In Post v. Toledo, etc., R. R. Co., 144 Mass. 341, 11 N. E. 540, 59 Am. Rep. 86, the plaintiff, creditor of a corporation, was allowed a discovery of the names of stockholders, in order that he might enforce the individual liability of such stockholders. But the names of such stockholders constituted information which was essential to plaintif in order that he might frame his proposed declaration or complaint, and institute his action. While the name and identity of the proposed defendants are certainly material to a cause of action about to be instituted, the whereabouts of defendants who are known and who have been made parties, cannot be said to be material to an action already pending against them. Hoppock's Executors v. United N. J. R. R. & C. Co., 27 N. J. Eq. 286 (reversed, on a ground not here involved, in 28 N. J. Eq. 261), is similar in principle to Post v. Railroad Company. The other cases cited by petitioner have no bearing upon the particular point now under discus sion.

Since the information sought was not material to the action in aid of which the proceeding against Mrs. Ustick was instituted, the petitioner could not, under any system of procedure, have maintained a bill of discovery against her. For the same reason, such petitioner was not entitled to examine her as a witness in the manner here attempted, and the court properly refused to compel her to be sworn.

The proceeding is dismissed.

We concur: ANGELLOTTI, J.; SHAW, J; HENSHAW, J.; LORIGAN, J.; McFARLAND, J.

(48 Or. 593)

BAKER COUNTY v. HUNTINGTON et al (Supreme Court of Oregon. Dec. 18, 1906.) 1. APPEAL-REVIEW-SUBSEQUENT APPEALS. Questions decided on appeal become the law of the case, precluding a review thereof on subsequent appeals.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4358.]

2. TAXATION-COLI.ECTORS - LIABILITIES ON

BONDS.

Under B. & C. Comp. § 3094, requiring the sheriff to give an additional bond as tax approved by the county court, conditioned for collector, signed by some responsible surety as the faithful performance of his duties, it is the signatures of the obligors and not the insertion of their names in the body thereof that gives validity to the bond.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 1031, 1028.] 3. SAME.

Where the supplemental bond of a sheriff as tax collector stipulated that the sureties, "we, or either of us, will pay" the sum of $10,000, prefixing a sum of $1,000 or $2,000 to the signatures of the sureties could not limit

or alter their joint and several liability as fixed by the the terms of the instrument. 4. SAME INCOMPLETE EXECUTION - IMPLIED NOTICE.

Where the bond of a sheriff as tax collector recited that H. was duly elected sheriff, and that the sureties agreed that if he did not perform the duties of his office, they would pay a certain sum, the sheriff not being designated in the bond as principal, his failure to sign the bond was not notice to the county of any failure to execute the undertaking.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 1028, 1031.]

5. TRIAL INSTRUCTIONS ASSUMPTION OF FACTS.

In an action on a tax collector's bond, an instruction that the mere signing by the sureties of an uncompleted instrument and leaving it with the collector, without any express restriction as to its delivery, is not enough, as a matter of law, to show authority to deliver it, but it is an important fact, "if you find it to be a fact." to be considered, etc., did not assume that it had been proven that the defendants left the bond with the collector without restriction as to delivery.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial. § 420.]

6. APPEAL-REVIEW-HARMLESS ERROR.

Under B. & C. Comp, § 136, making it incumbent on a court to interpret written instruments, error, in submitting them to the jury, is harmless if their finding thereon is correct.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4033, 4212.] 7. TRIAL-INSTRUCTIONS-FORM.

Though the court should not speak of facts as "important" in its charge, the use of such term will not be deemed misleading where it has been used a number of times in the instructions for both parties.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 577-580.]

8. SAME-REQUESTS-NECESSITY.

That instructions, relating to the delivery of a bond and certain restrictions and reservations relative to the delivery, were confined to the time of delivery could not be complained of by defendants, who made no request that prior conversations be included in that portion of the charge.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 628.]

9. APPEAL-REVIEW-PRESUMPTIONS.

Where, in an action on the bond of a sheriff, the court referred to a shortage of money occasioned by a deputy sheriff, and the bill of exceptions certified to by the judge did not purport to contain all the testimony, and there was no statement that no testimony was offered tending to show what caused the loss of the moneys collected, it will be presumed that the intruction was based on testimony.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $$ 3673, 3751.] 10. TAXATION-COLLECTORS-LIABILITIES ON BONDS.

Where the bond of a sheriff as tax collector recited that if he did not pay over the money in his hands, "we, or either of us, will pay" the sum of $10,000, an instruction that the verdict, if any, against defendants should be for the sum of $10.000, with interest thereon at the legal rate from the date of the service of summons, was correct.

judgment for plaintiff, defendants A. L. Brown and others appeal. Affirmed.

J. II. Raley and C. A. Johns, for appellants. Leroy Lomax and Gustav Anderson, for respondent.

MOORE, J. This is the third appeal by the defendants, A. L. Brown, D. Cartwright, J. T. Fyfer, James Fleetwood, and J. W. Isenhofer, from a judgment rendered against them in an action upon an instrument alleged to be a sheriff's bond as tax collector. As grounds for a reversal of the judgment, it is contended that errors were committed in refusing to take from the jury the undertaking which forms the basis of this action; in refusing to give a judgment of nonsuit; and in declining to instruct the jury as requested to return a verdict for the defendants. These alleged assignments of error are founded on the assumption that the testimony introduced by the plaintiff was insufficient to show that Huntington, as sheriff of Baker county, ever had any authority from the defendants, as sureties on the bond, to deliver that instrument to the county court of that county. The legal principles so insisted upon were presented to, and considered by, this court on the former appeals (46 Or. 275, 79 Pac. 187, and 47 Or. 328, 83 Pac. 532), and the conclusions there reached have become the law of the case, precluding a review of the questions suggested. Applegate v. Dowell, 17 Or. 299, 20 Pac. 429; Portland Trust Co. v. Coulter, 23 Or. 131, 31 Pac. 280; Stager v. Troy Laundry Co., 41 Or. 141, 68 Pac. 405; Pacific Biscuit Co. v. Dugger, 42 Or. 513, 70 Pac. 523.

An exception having been taken to the following part of the court's charge, it is maintained that an error was committed in giving it, viz.: “(3) I instruct you that, as a matter of law, the lack of names of the principal and sureties in the body of the bond, lack of justification by two of the sureties, minutes or entries opposite the names of the sureties who signed, and failure of the principal to sign the bond, are not fatal defects, and do not, of themselves alone, render the bond void. The effect of these was to put the county upon inquiry, at the time Huntington offered the bond, as to Huntington's authority to deliver the same as a completed obligation for the purpose claimed by the plaintiff, and the plaintiff will be held bound by any facts which you find it would then have ascertained by reasonable inquiry and investigation."

To render the instruction complained of intelligible, it is deemed proper to set out a copy of the bond, which, omitting the justifiIcation of the sureties thereon, is as follows: "State of Oregon, County of Baker-ss:

"Whereas, at an election held on the 4 day of June, 1900, A. H. Huntington was duly

Action by Baker county against A. H. Huntington, A. L. Brown and others. From a

of Oregon, we, A. L. Brown,

and -, hereby undertake that if the said A. H. Huntington shall not pay over according

As evidence of the ability of the sureties to perform the undertaking, and as to the surrender of the instrument, we take the following excerpt from a former opinion: "It appears from accompanying certificates that Duffy, Fyfer, Cartwright, and Isenhofer justified, but not so with Fleetwood and Brown. It is alleged that Huntington delivered the writing obligatory to the county court of Baker county as and for his additional bond as sheriff and ex officio tax collector of that county, and that the same was accepted by the court." 46 Or. 275, 79 Pac. 187. Considering the clauses of the instruction in the order stated, it is the signatures of the obligors to the bond, and not the insertion of their names in the body thereof, that give validity to the instrument and render them liable for a breach of its conditions. 5 Cyc. 732 and 739; Murfree, Official Bonds, § 168. The statute, requiring the execution of a supplemental undertaking, is as follows: "Before entering upon his duty as tax collector, the sheriff shall give a bond, signed by some responsible surety company, or some responsible surety or sureties as approved by the county court, conditioned for the faithful performance of his duties as such tax collector, in such amount as the county court shall direct, and such bond if signed by a surety company shall be paid for by the county court." B. & C. Comp. § 3094. The legislative assembly has not demanded that the sureties to the bond of a sheriff as tax collector should justify, and, in the absence of an enactment to that effect, the signatures of the obligors without evidence of their qualifications validates the instrument, if it is approved by the county court. Du Boise v. Bloom, 38 Iowa, 512. An examination of the bond hereinbefore set out will show that preceding the name of A. L. Brown appear the word and figures, "For $1,000.00," and that similar memoranda are prefixed to the names of the other obligors, which words and figures are designated by the court as "minutes or entries." What such word and figures may mean is unimportant, so far as the plaintiff is concerned, for the bond on its face being joint and several, the prefixing to the names of the sureties of the minutes or entries adverted to cannot limit or alter their liability which is fixed by the terms of the instrument. Dangel v. Levy, 1 Idaho, 722. It has been held that the failure of a principal to sign a bond when his name appears in that capacity

on the face of the instrument relieved the sureties from liability thereon for a delivery and acceptance thereof without their knowledge and consent. Johnston v. Kimball Township, 39 Mich. 187, 33 Am. Rep. 372; Hall v. Parker, 39 Mich. 287. In the case at bar, though the bond on its face states that Huntington was duly elected sheriff, etc., he is not designated therein as principal, and, as the only person named as a party is A. L Brown, who signed the instrument, no notice on that account could have been imparted to the plaintiff of any failure to execute the undertaking.

As the other parts of the instruction complained of state the defendants' theory of the case they will not be considered, believing that no error was committed as alleged.

Exceptions having been taken to the following parts of the charge, it is contended that errors were committed in instructing the jury as follows:

"(5) It is not necessary for the plaintiff to show express authority from the defendants to Huntington to deliver the bond. Huntington's authority may be implied from the acts and conduct of the sureties. The mere signing of them of the uncompleted and imperfect instrument in the manner in which they signed it, and leaving it with Huntington without any express restriction as to its delivery, is not enough, as a matter of law, to show authority to deliver it, but it is an important fact, if you find it to be a fact, to be considered by you along with all the other evidence in determining whether the sureties intended to vest Huntington with authority to deliver the instrument in its then condition as their act and deed, or whether the understanding was that the bond should not be delivered until the aggregate amounts assumed by the several sureties should equal the face of the bond. "(6) The uncompleted condition of the instrument in the particulars to which I have referred, although in itself not a fatal defect, should be considered, as also should the attempt to limit the liability of the sureties, by writing the amount each intended to assume, if you find that the figures were placed there by the sureties or at their direction for any such purpose, opposite the signatures. If you are satisfied from the evidence that the defendants wrote or caused to be written these figures opposite their signatures in an attempt thereby to limit their liability, you should consider that fact. All these are important factors, and should be considered. And if, at the time they executed the bond, they imposed no restrictions upon its delivery, and nothing was said about that matter or the obtaining of other sureties, this is an important fact for your consideration as evidence, although not conclusive of an intent to make Huntington their agent to deliver the bond to the county. Huntington's authority must be determined from all the circum