stances in the case, and not from any single item of evidence."

It is argued that the fifth instruction assumed that it had been proven that the defendants left the bond with the sheriff without express restriction as to its delivery, thereby excluding a consideration of any reservation that might have been implied from the face of the instrument, the acts, conduct, or conversation of the sureties, thus leading the jury to conclude that any evidence, other than an express limitation, was ineffectual. It is unnecessary to state whether or not there was any testimony introduced at the trial tending to warrant the court's declaration to the effect that the bond was left with Huntington "without any express restrictions as to its delivery," for the language so used is qualified by the further remark addressed to the jury, "if you find it to be a fact." The jury were thereby told that if they should find that the instrument was left with the sheriff without any express restrictions as to its delivery, such fact should be considered along with other evidence, such as the face of the instrument, the acts, conduct, or conversation of the defendants, in determining whether or not they intended to authorize Huntington to deliver the bond in its then condition.

It is maintained that in referring to the bond and to the prefixing to the defendants' names the word, signs, etc., noted thereon as possibly evidencing an intention to limit their liability, the court, in the sixth instruction, told the jury that if they found that the figures placed there by the sureties, or at their direction for any such purpose, etc., thereby submitted to them the interpretation of a writing which it should have construed; that the figures mentioned may have been so placed by some person other than the sureties, or without their direction; and that undue attention is called to and improper stress laid upon what is designated as an "important" fact, thus confining the limitation of restrictions to the time when the bond was executed and excluding from consideration all conversations the defendants may have had in respect to their liability prior to their signing the instrument. It is incumbent upon a court to interpret written instruments (B. & C. Comp. § 136), but where the construction of a document is referred to a jury, their finding thereon, if correct, renders the error committed in such submission harmless. Johnson v. Shively, 9 Or. 333; Christenson v. Nelson, 38 Or. 473, 63 Pac. 648. the case at bar, we believe the finding on the question, involved in the instruction under consideration, is correct, so that if it be assumed that the matter should not have been submitted to the jury, their verdict will not be disturbed. It is possible that the word, signs, and figures prefixed to the signatures of the sureties may not have been written by them, or with their direction, but if such be the case, the entries must, to have any effect

as a limitation, have been made on the instrument prior to the signing, for, upon subscribing their names thereto, the sureties adopted such minutes as their own, so that the writing referred to, however made, comes within the terms of the charge. The word "important," as used by the court to qualify the word "fact," was probably not well chosen, but as the same adjective is employed in limiting words in other parts of the charge that are favorable to the defendants, we do not think they were prejudiced, or the jury misled thereby.

It is unnecessary to consider whether or not the restrictions in respect to the delivery of the bond were confined to the time when the instrument was executed, for, if the defendants desired that prior conversations should have been included in that part of the charge, they should have requested an instruction to that effect, but, not having done so, we think no prejudicial error was committed in giving the fifth and sixth instructions.

Exceptions having been taken to the following parts of the charge, it is insisted that the court erred in giving them, to wit:

"(13) You are instructed that the sureties on the sheriff's official bond as tax collector are, equally with the sheriff, civilly liable for the acts of his deputies, and that it is immaterial in this case how the shortage arose or by whom it was created, or whether or not it arose from criminality or accident. These matters are not to be considered by you in this case.

"(14) It is admitted by the defendants in this cause, Brown, Fleetwood, Cartwright, Isenhofer, and Fyfer, that the shortage in the account of A. H. Huntington, as sheriff, for taxes collected by him between September 5, 1900, and July 7, 1902, is $10,770.64, but the penal sum named in the bond is only $10,000. I instruct you that the said sum of $10,000 is the maximum amount of penalty that can be recovered by the plaintiff in this action against said defendants. If, therefore, you find for the plaintiff, your verdict 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 in this case on the defendants, to wit, the 12th day of March, 1903."

It is argued by defendants' counsel that no testimony was offered tending to show that the shortage of money adverted to was occasioned by any deputy sheriff, and for that reason the thirteenth instruction was erroneous. The bill of exceptions, certified to by the judge, does not purport to contain all the testimony given at the trial, nor is any statement made therein that no testimony was offered tending to show what caused the loss of the taxes collected. The court reporter, however, certifies to what purports to be a transcript of all the testimony so introduced, which copy is referred to and identified in the court's certificate; but as the transcript was

evidently sent up in support of the defendants' motions for a judgment of nonsuit, and for an instruction to the jury to return a verdict in their favor, it should be examined for those purposes only. If a transcript of all the testimony, etc., could take the place of a bill of exceptions, there would be no necessity for preparing a formal statement in writing of the objections and exceptions taken by a party during the trial of a cause, with so much of the testimony only as illustrated the error alleged to have been committed, for by interposing a motion for a judgment of nonsuit, or for an instruction to return a verdict for the defendant, the entire testimony must be examined upon every ground that could be suggested, the work of a court of appeals would become almost interminable. The bill of exceptions not containing the statements mentioned, it must be presumed that the instruction complained of was based on the testimony introduced, and hence no error was committed in giving it.

The fourteenth instruction limited the recovery to the penal sum specified in the bond, in case the jury found that plaintiff was entitled to recover, and in our opinion it correctly stated the law applicable to the case. An exception having been taken to the following part of the charge, it is claimed that an error was committed in giving it, viz.:

"(16) I instruct you that, as a matter of law, a person who signs a joint and several bond or obligation in which a specific penal sum is named, cannot lessen or limit his liability thereon by writing another and smaller sum opposite his signature. If liable at all on the instrument he can be held for the full amount, notwithstanding such figures. If he desires to limit or lessen his liability he must insert appropriate words in the body of the instrument. But you may consider such sums written in front of the names in determining whether or not any restriction or limitations were placed upon the delivery of the bond; provided you further find that defendants wrote the sums opposite their names or authorized it to be done at the time of signing."

If the limit of the liability of a surety had been stated in the body of the bond, the sum so specified would have been notice thereof to the obligee, and probably constituted the measure of recovery against each. People v. Stacy, 74 Cal. 373, 16 Pac. 192.

Prefixing

numbers to the names of sureties on a joint and several bond, however, could not change the legal effect of the instrument or limit the liability of the persons whose names were so subscribed to the sums indicated. Dangel v. Levy, 1 Idaho, 722. No error was committed in giving this instruction.

The defendants' counsel requested the court to give the following instruction, which was modified by inserting the words indicated in parentheses, and an exception having been saved, it is maintained that an error was committed, to wit:

"(17) I instruct you that the signing of the instrument in evidence by the defendants, and the delivery thereof to Huntington, if you find they did so, did not authorize Huntington to deliver it to the county court of Baker county; and unless you further find from the evidence that the defendants, either by word or act, waived the limitation and restrictions (if any), expressed upon the face of the instrument, such delivery, if any, by Huntington was unauthorized, and your verdict must be for the defendants."

It is argued that the insertion of the words "if any" in the instruction requested submitted to the jury the determination of the question whether or not the word, signs, and figures prefixed to the names of the sureties, constituted a limitation upon the instrument, when the duty of construing the language of the writing devolved upon the court. If it be assumed that the interpretation of the prefixes to the names of the securities was erroneously submitted to the jury, we believe their finding thereon was correct, and that the verdict should not be set aside. Johnson v. Shively, 9 Or. 333; Christenson v. Nelson, 38 Or. 473, 63 Pac. 648.

It follows from these considerations that the judgment should be affirmed, and it is so ordered.

HAILEY, J., having been of counsel, took no part herein.

(48 Or. 604)

WHITE V. SAVAGE et al.* (Supreme Court of Oregon. Dec. 18, 1906.) 1. BILLS AND NOTES-ACCOMMODATION PARTY -NOTICE-STATUTES.

Under the express provisions of B. & C. Comp. 4431, the holder of a note for value is entitled to recover thereon against an accommodation party, though the holder had notice at the time he took the note that the person sought to be charged was only an accommodation party.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 964, 965.]

2. PRINCIPAL AND SURETY-PRINCIPAL DEBTOR-FAILURE to Pursue.

Failure of a creditor to proceed against the principal debtor on the request of the surety does not release the surety from liability.

[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Principal and Surety, § 329.]

3. INJUNCTION - SUITS AT LAW ADEQUATE REMEDY AT LAW.

Where a husband signed certain notes for the accommodation of his wife, who thereafter died, leaving an estate sufficient to pay them, the husband was not entitled to an injunction restraining the holder from pursuing him, instead of filing the notes as a claim against the wife's estate; the husband having an adequate remedy at law by himself paying the notes to the holder and filing them against the wife's estate.

[Ed. Note.-For cases in point, see Cent. Dig vol. 27, Injunction, §§ 28, 35.]

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Suit by M. M. White against Lewis Savage *Rehearing denied January 12, 1907.

This is a suit to restrain defendant Savage from prosecuting two actions against the plaintiff upon promissory notes, signed by plaintiff and his wife, since deceased, and to compel the defendant Savage to present his notes to the executors of the will of plaintiff's wife for allowance, and for said executors to allow and pay them out of the estate. The amended complaint alleges, in substance, that the defendant Savage is the father of the defendant Zella Fletcher, and H. C. Fletcher is her husband; that

Carolina E. Sloper White, wife of the plaintiff, died about August 18, 1904, in Marion

of Savage, and signed by the plaintiff and his wife, and secured by a mortgage upon lands owned by her in Salem, Or., were received wholly by the plaintiff's wife and expended for her care and nursing and medical attendance upon her, and that the plaintiff received no part of the consideration for said notes, and is only a surety upon said notes, and the same is well known to the defendant Savage; that shortly after the death of plaintiff's wife the defen lant Savage offered to pay him $100 for a deed of conveyance to him of plaintiff's estate and interest in the lands owned by his wife at

the time of her death, but the sum was whol

the defendants H. C. and Zella Fletcher executor and executrix, respectively, of her will, which was thereafter admitted to probate and said executor and executrix duly appointed and qualified thereunder; that defendants George Sloper and Lottie Young are the only children and sole heirs at law of the plaintiff's wife; that plaintiff and said Carolina E. Sloper White were married about the month of August, 1901, and were husband and wife at the time of her death;

ecute such deed, and thereupon Savage commenced the action above referred to, and now the five defendants are engaged in an effort to despoil the plaintiff and obtain his interest in his wife's lands by selling the same upon execution upon the judgments to be obtained in said actions; that said ac tions have been commenced solely for that purpose, and the plaintiff, aside from his estate in said lands, is wholly insolvent. and that Savage knew when he brought his

and devisee in her will, but has renounced his claim to the provisions of said will, and claims a life estate in all her lands as tenant by curtesy: that for several years preceding her death his wife was an invalid and required great care and attention in nursing, and they were without any considerable means to pay for such expenses, and his wife applied to the defendant Savage for a loan, and Savage from time to time. did advance and lend her divers small sums of money, which were wholly used in defraying expenses of nursing and caring for her, and that from time to time, as the sums loaned amounted to the sum of $109, plaintiff's wife executed notes to Savage as an evidence of said indebtedneses on her part, and plaintiff signed the notes with her, but only as surety; that on August 22, 1904, after her death, Savage commenced an action in the circuit court of Marion county against the plaintiff on two of said notes for $100 each, and thereafter, on September 6, 1904. commenced another action in the same court against the plaintiff upon the remaining two of said $100 notes, and in each of said actions caused a writ of attachment to be issued, and by virtue thereof attached the plaintiff's estate by curtesy in the lands of his deceased wife, and that Savage has not presented said claims to the executors for allowance, and wrongfully fails to present the same for the purpose of defrauding plaintiff out of his life estate in the lands of his wife; that all the moneys paid by Savage as a consideration for the execution of the four notes, and also a note for $300, dated January 21, 87 P.-66

the judgment obtained by him only out of the life estate of plaintiff, and he also knew that the estate of plaintiff's wife was well able to pay the same, and that it would pay it upon presentation; that prior to the commencement of this suit plaintiff duly presented his claim and demand to the executor and executrix of said estate, setting forth, among other things, the fact that he was only surety upon said notes, and demanding that said executor and executrix indemnify and save him harmless of and from the amounts due upon said notes, but they have failed and neglected so to indemnify and save him harmless, notwithstanding the fact that the estate of plaintiff's wife is able to pay the same after the payment of all the prior claims against sail estate; that plaintiff has no plain, speedy. or adequate remedy at law. and that the plaintiff has offered to defendant Savag payment in full upon all said notes and mortgage, and requested Savage to assign same to plaintiff, but defendant has refused to do so for the reason that, if he did so, his prospects of acquiring title to said property from the said several actions would be entirely swept away, and that being his only reason for bringing said actions at this time; and that, unless defendant Savage is so restrained, he will recover judgment and sell plaintiff's estate and thereby cause him irreparable damage. Plaintiff then prays for a decree restraining defendant Savage from further prosecuting his actions, and declaring plaintiff to be a surety only upon said notes, and that Savage be required to present his notes to the executors of the estate

of plaintiff's wife immediately, and that said executors be required to pay all of said notes out of the assets of said estate and indemnify and save the plaintiff harmless from all liability for all said notes and exonerate him as surety thereon. The foregoing is the substance of the complaint and substantially the language of the pleader. To this complaint a demurrer was filed on the grounds that the court had no jurisdiction of the subject-matter and that it did not state facts sufficient to constitute a cause of suit, which demurrer was overruled and answers filed, and, after trial, a decree was rendered in favor of the plaintiff, from which this appeal was taken.

John W. Reynolds and Carey F. Martin, for appellants. John A. Carson and S. T. Richardson, for respondent.

HAILEY, J. (after stating the facts). The facts alleged in the foregoing complaint are evidently intended to state a cause of suit to compel the creditor Savage to proceed against the estate of plaintiff's wife as principal upon the notes in controversy, for payment therefor, before coming against the plaintiff as surety thereon. This is not a case where the plaintiff as surety claims to have been discharged in full or pro tanto by some act of the creditor detrimental to his rights as surety, as are the cases of Brown & Co. v. Rathburn et al., 10 Or. 158, and Hoffman v. Habighorst, 38 Or. 261, 63 Pac. 610. It is claimed that, the plaintiff being surety only upon the notes signed by himself and wife and defendant Savage being aware of that fact, he cannot compel plaintiff to pay without first exhausting his remedies against the principal or her representatives. Section 4431, B. & C. Comp., provides as follows: "An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or endorser, without receiving value therefor, and with the purpose of lending his name to some other person. Such a person is liable on the instrument to the holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party." Under this section it is clear that, so far as a holder for value is concerned, the question of notice does not affect the liability of the surety, and the complaint in this case shows that Savage is a holder for value; for it expressly alleges that he advanced and loaned to the plaintiff's wife the money for which the notes were given. It has been held by this court in Findley v. Hill, 8 Or. 248, 34 Am. Rep. 578, that the failure of the creditor to proceed against the principal debtor upon the request of the surety does not release the surety from liability; and in Rockwell v. Portland Savings Bank, 39 Or. 244, 64 Pac. 389, it is said: "In such case the surety may protect himself by paying the debt and being subrogated to the rights of the creditor." In Bowen v. Clarke, 25 Or. 595, 37 Pac. 75,

Mr. Justice Bean said: "We understand the rule to be that where two or more persons execute an instrument at the same time, upon the same consideration, and for the same purpose, they are all, in legal effect, joint contractors or obligors, so far as their liability to the other contracting party is concerned, although one may be designated thereon as surety, and sign it as such." And in Galloway v. Bartholomew, 44 Or. 77, 74 Pac. 467, it was held that the word "surety," written after the name of one of the makers of a note, would only show the relation of the makers to each other, and perhaps charge the holder with knowledge to that effect, but it would not affect their liability to him.

In Harman v. Harman, 62 Neb. 452, 87 N. W. 177, it is held that a surety of a decedent who pays a claim against the estate of his principal is subrogated to the rights of the creditor. The rule is well established in this state that a surety who pays the debt of his principal is subrogated to the rights of the creditor. Keel v. Levy, 19 Or. 450-454, 24 Pac. 253; Denny v. Seeley, 34 Or. 364-369, 370, 55 Pac. 976; Hoffman v Habighorst, 38 Or. 261-271, 63 Pac. 610. In Scantlin v. Kemp, 34 Tex. 338, a note was given to the plaintiff Scantlin, signed by defendants Kemp and another as surety, and by Slane, the principal maker, who died, and after an administrator had been appointed the holders sued the sureties, who answered and proved upon the trial that Slane was the principal and received the entire consideration of the note, and they were sureties only, and that Slane left a solvent estate and they had notified the holder to take the proper steps to collect his claim from the estate, and a judgment was thereupon entered in favor of the sureties, but the case was appealed, and the Supreme Court in deciding it held that on the death of the principal the sureties became primarily liable for the note, and that it was unnecessary to present the note to the administrator for allowance. Willis & Bro. v. Chowning, 90 Tex. 621, 40 S. W. 395, 59 Am. St. Rep. 842; Vredenburgh v. Snyder, 6 Iowa, 39; Ray v. Brenner, 12 Kan. 105.

In the case at bar, however, it is not alleged or claimed that the plaintiff requested the defendant Savage to present his claim to the the executors of his wife's will for allowance, but that plaintiff presented his claim to the executors and requested them to protect him. We think, however, that he should have paid the notes to Savage and then presented his claims to the executor and executrix of his wife's estate, and that he could have fully protected himself by so doing. Having, therefore, a complete remedy at law whereby he could protect his rights, the court had no jurisdiction of this case, and the demurrer should have been sustained.

The decree is therefore reversed, and the case remanded for further proceedings not inconsistent with this opinion.

(48 Or. 612)

In re MORRISON'S ESTATE.

JOEL et al. v. McDONALD. (Supreme Court of Oregon. Dec. 18, 1906.) 1. COURTS PROBATE JURISDICTION-PROCEDURE-NATURE AND FORM IN GENERAL.

Proceedings in the county court exercising jurisdiction in probate should follow the nature of a suit in equity as distinguished from a suit at law, as provided by B. & C. Comp. § 1100. [Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, § 480.]

2. APPEAL-EQUITY PROCEEDINGS-REVIEW.

On an appeal from a decree in equity given in any court, the suit must be tried on the transcript and evidence accompanying it, as prescribed by B. & C. Comp. § 555.

[Ed. Note.-For cases in' point, see Cent. Dig. vol. 3, Appeal and Error, § 3367.]

3. SAME-WANT OF EVIDENCE-QUESTIONS REVIEWABLE.

Where, on an appeal from a decree in equity, no evidence was brought up to the appellate court, the only question reviewable was whether or not the pleadings were sufficient to uphold the decree.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3367.]

4. EXECUTORS AND ADMINISTRATORS - ACCOUNTING APPEAL-WAIVER OF DEFECTS IN PETITION.

Where a decree appealed from, requiring an administrator to file a final account, was based on a petition which failed to state evidence sufficient to entitle petitioners to the relief prayed, such defect was not waived by the administrator answering over after the overruling of his demurrer to the petition, as provided by B. & Comp. § 72.

5. SAME-FINAL ACCOUNT-PETITION.

A petition by a person interested in the ultimate accounting of an administrator or executor to compel the filing of a final account must aver that decedent's estate is ready for the final settlement.

[Ed. Note. For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 2028, 2029.]

6. SAME.

Under B. & C. Comp. § 1202, providing that, when an estate is fully administered, it shall be the duty of the executor or administrator to file his final account, a petition by certain distributees entitled to only one-fourth of the estate to compel a final accounting and distribution failing to allege that the estate was fully administered, but showing that there remained for collection several notes and claims, some of which were not due and others of which were of doubtful value, and failing to allege any contract between the distributees for distribution of such assets in kind, was fatally defective.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 2028, 2029.]

Appeal from Circuit Court, Union County; Robert Eakin, Judge.

Proceeding by Cora L. Joel and another to compel P. A. McDonald, as administrator of the estate of John Morrison, deceased, to file a final account. From a judgment in favor of petitioners, defendant appeals. Reversed.

Turner Oliver, for appellant. C. H. Finn, for respondents.

MOORE, J. This proceeding was instituted in the county court of Union county March 28, 1906, by Cora L. Joel and Minnie Goodman against P. A. McDonald, as administrator of the estate of John Morrison, deceased, to compel the filing of a final account. The petitioners, for themselves and for their four brothers, naming them, state in their application, in effect, that Morrison died January 31, 1905, unmarried, without lineal descendant, and intestate, leaving in that county real and personal property; that McDonald was duly appointed as administrator of the decedent's estate by that court, and, having qualified as such, he gave the required notice to creditors, prepared and filed an inventory of the estate, showing the appraisment thereof to have been in cash $6,410.95, personal property, including notes and accounts, $12,388.70, and real estate. $12,275, makinp a total of $31,074.65; that on December 12, 1905, the administrator filed his first semiannual account, showing that he had received from the sale of personal property and from the collection of notes and accounts the sum of $3,487.51, and that he had paid out for all purposes $742.93. thus leaving in his hands in cash, including the money originally received, $9.155.53; that the estate owes no debts, and the money so in hand should be distributed or put at interest; that there are no existing contracts affecting any of the property of the estate to prevent a final settlement thereof; that the following are all the heirs at law of the deceased, naming them, and stating their respective degrees of relationship to Morrison, which, by reference to the petition for the appointment of the administrator, shows that the petitioners and their brothers are entitled as tenants in common to an undivided one-fourth of such estate by right of representation from their deceased mother: that all of such heirs are of age; and that McDonald had been requested by the petitioners to settle the estate, that the assets thereof might be distributed. A citation having been issued and served on McDonald, he demurred to the petition on the ground. inter alia, that it did not state facts sufficient to constitute a cause of suit against him, but what action, if any, was ever had upon this demurrer, is not disclosed. An answer to the petition was filed, stating that the administrator had tried, to collect the promissory notes that were payable to the estate, some of which were good and would be paid after harvest; that certain other notes were doubtful, and an attempt to collect them by action would incur costs and disbursements, but the makers thereof had promised to pay them; and that several other notes were not then due, setting out a list of such commercial paper. A demurrer to the answer, on the ground that the facts stated therein did not constitute a defense, having been overruled, the court, in the same order, recited the averments of the answer