10-RIGHT TO WRIT-NECES- On presentation of this paper the circuit 3. MANDAMUS 4. JUDGMENT -STATUTE. "It is therefore ordered that the clerk of this court issue an order, returnable on the 16th day of March, 1915, at 2 o'clock p. m., directing the defendant to show cause, if any, why such writ should not issue." On the 15th of that month the defendant appeared specially for the purpose of the 949-PETITION-SUFFICIENCY motion only, and applied to the court to quash the proceeding on the ground that "no alternative or other writ of mandamus hav- Under L. O. L. 87, providing that in pleading a judgment of a court of special jurisdiction it shall not be necessary to state the facts conferring jurisdiction, but the judgment may be stated to have been duly given or made, in mandamus proceedings to compel a constable to serve an execution of restitution issued by the district court of the Portland district, existing under General Laws 1913, c. 355, creating a In fact no proof of any service of the order court in cities of 100,000 population, which or notice in pursuance thereof appears in is equivalent to a justice's court, and one of the record on appeal. On April 3, 1915, the limited powers, where the petition merely stat-circuit court made an order, reciting the aped that the action in which the execution issued was one in forcible entry and detainer, and that pearance of the parties on the 16th of March, a judgment of restitution was rendered against and concluded with the following: the defendant, mandamus could not issue, since there was no particular recital of the facts investing the district court with jurisdiction, or, in lieu thereof, strict compliance with the statute by declaring that the judgment was duly made or given. [Ed. Note. For other cases, see Judgment, Cent. Dig. 88 1794, 1795-1803; Dec. Dig. 949.] The allegations of such petition amounted to a mere conclusion of law. [Ed. Note. For other cases, see Mandamus, Cent. Dig. 88 296-316; Dec. Dig. 154.] In Banc. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge. Petition for mandamus by C. B. Canuto against Andy Weinberger, Constable. From an order denying the writ, plaintiff appeals, Affirmed. After stating that the defendant is the constable for the district court of Portland district in Multnomah county, Or., the petition for the writ of mandamus contains this allegation: of the "That on or about the 27th day of February, 1915, the plaintiff herein commenced an action in the district court of Multnomah county, said Portland district, against one Lewis Level in forcible entry and detainer, such action being recorded in Book at page records of said district court, and that afterwards, to wit, the 2d day of March, a judgment of restitution was rendered against the said defendant Level in said action, and an execution of restitution issued thereon and delivered to the said defendant Weinberger for service on the 12th day of March, 1915." es, it is therefore ordered and adjudged that the "The court being fully advised in the premisapplication of plaintiff for a writ of mandamus be, and the same is hereby, denied, and that defendant have judgment against the plaintiff for his costs and disbursements. Appeal bond is fixed in the sum of $300. "Dated at Portland, Oregon, this 3d day of April, 1915." The plaintiff appeals. W. H. Bard and J. A. Mears, both of Portland, for appellant. T. G. Ryan, Dep. Dist. Atty., and Walter H. Evans, Dist. Atty., both of Portland, for respondent. BURNETT, J. (after stating the facts as above). [1-3] The court might have allowed the writ of mandamus either in the alternative or in the peremptory form, but section 614, L. O. L., says: the adverse party, as in the case of a writ of "It may be allowed, with or without notice to review." The order first mentioned amounted to a direction that notice be served on the adverse party before allowing the writ in either form. Necessarily, on the hearing consequent upon the notice, the court would have to examine the petition to determine whether any grounds existed for granting the writ. It is a general principle, relating to mandamus to compel action by an executive officer, that the right to the same must be apparent. The rule is applicable to this proceeding in the following manner: If upon examination of the record upon which the execution was issued it should be found so defective that the jurisdiction of the court making it does not appear, the right to compel the officer to act under the execution would not be sufficiently manifest to justify the issuance of the writ of mandamus. Averring that the plaintiff has demanded of the defendant constable performance of the command of the execution, that he has failed to obey it except upon payment to him of $100, and that the plaintiff was damaged in the sum of $75, the petition asks that a peremptory writ of mandamus issue against the defendant, and that the plaintiff have [4] The district court of the Portland disjudgment against him for the damage claim- trict in Multnomah county, Or., exists by ed, together with costs and disbursements. virtue of chapter 355 of the General Laws of 1913. In substance that act creates a court in cities of 100,000 population or more, which is equivalent to a justice's court. The tribunal thus established is one of limited powers. Formerly, the rule in pleading the judgments of such tribunals made it necessary to set out in detail the facts conferring jurisdiction. The asperity of this requisite was relieved by section 87, L. O. L., as follows: "In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made." In Ashley v. Pick, 53 Or. 410, 100 Pac. 1103, the authorities are reviewed, and, holding that the statute must be strictly construed, the canon is there established that if a party would be relieved from stating the doings of the inferior tribunal in detail, he must strictly comply with the enactment relieving him from that duty, and declare in its very terms that the judgment was "duly" given or made. Failing in this, his pleading is not sufficient. 2. CONTRACTS 129-LEGALITY OF OBJECT” AGREEMENTS RELATING TO ACTIONS. The mere fact that a litigant agrees in advance to pay the expenses of a lawsuit is not sufficient to brand the contract as being against public policy, since that does not show conclusively a lack of good faith. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 616-632; Dec. Dig. 129.] 3. CONTRACTS 342-LEGALITY OF OBJECT— RELIEF OF PARTIES-PLEADING. The burden is on the one alleging that the object of a contract to pay the costs and fees of an action is illegal to allege in the complaint sufficient facts to disclose the immorality or injurious tendency of the contract. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1196, 1716; Dec. Dig. 342.] 4. PLEADING 8-CONCLUSIONS. A complaint, alleging that the mayor and councilmen of a city agreed to pay the fee of the attorney acting for the plaintiff in an action to test the validity of the incorporation of the city, and alleging that the agreement was illegal, is insufficient to show a cause of action; the statement that the contract was illegal being a mere conclusion of law. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 12-282, 68; Dec. Dig. remanded. 8.] In the year 1912, the defendant Proctor, as relator, instituted a suit against Bay City and its mayor and council, wherein the valid Department 2. Appeal from Circuit Court, Tillamook County; Webster Holmes, Judge. [5] On inspection of the petition we are Action by W. S. Cone and others against unable to discover that the district court had W. H. Gilmore and others. From a judgjurisdiction over the subject of the action. It is true, it is stated that it was one "inment on the pleadings for the plaintiffs and forcible entry and detainer," and that "a an order denying leave to answer to the merjudgment of restitution was rendered against its, the defendants appeal. Reversed and the said defendant Level." This, however, is a mere conclusion of law, unsupported by any facts, showing, for instance, that it was for the detainer of real property or that the same was in Multnomah county. In the ab-ity of the incorporation of the defendant city sence of a particular recital of all the facts investing the district court with authority to act, or in lieu thereof strict compliance with the statute mentioned giving a shorter form of statement, the petition shows that the proceeding in the district court failed to confer jurisdiction upon that tribunal, and hence, as a consequence, the duty of the constable to serve a writ issued upon such a judgment was not plain. In brief, the petitioner did not plead a judgment sufficient to support his execution. Under these circumstances the court was justifiable in refusing the writ and dismissing the proceeding. Its judgment is affirmed. EAKIN, J., absent. CONE et al. v. GILMORE et al. (Supreme Court of Oregon. Feb. 23, 1916.) 1. CONTRACTS 108-ILLEGALITY OF OBJECT -PUBLIC POLICY. Whether a contract is void as against public policy depends on the facts of the particular case, and a contract will be upheld unless it tends to injure the public or is inconsistent with sound morality. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 498-503, 505, 507-511; Dec. Dig. 108.] was attacked. This suit was prosecuted to a final decree in this court, in which the defendants therein prevailed. Growing out of this litigation, this suit was commenced by the plaintiffs, as residents and taxpayers of the defendant city, and their cause of suit is stated thus: "That about the time said suit was instituted by said Proctor the then mayor and councilmen of said Bay City, Or., entered into an agree ment with said Proctor and the said Everett A. Johnson, whereby it was agreed that in the event that the said suit should be decided against the said Proctor, and the said Bay City, Or., should be decided to be a duly incorporat ed municipal corporation of the state of Oregon, then the defendant Bay City, Or., for the benefit of the said Proctor, as plaintiff therein, would pay to the said Everett A. Johnson an attorney fee of $250, and would also pay the costs and disbursements incurred by said Proctor in the prosecution of said suit. That the said suit was prosecuted to a final determination thereof in the Supreme Court of the state of Oregon, which court in a decree rendered thereon on or about day of April, 1913, declared the said Bay City, Or., to be a duly incorporated municipal corporation of the state of Oregon, and further decreed judgment in favor of said Bay City, Or., and against the said Proctor, for the costs and disbursements of said suit. That immediately after the month of April, 1913, the said defendant W. H. Gilmore, mayor, and the other defendants named herein as councilmen of Bay City, Or., caused war For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes rants to be issued upon the general fund of Bay City, Or., for the purpose of carrying out the said attempted and illegal agreement made by the said council of Bay City, Or., with said Proctor and Johnson; the said mayor and councilmen having full knowledge of the facts and terms of said illegal agreement and knowing the facts and circumstances surrounding and included in said agreement to be as hereinabove stated. That from and out of the funds arising from the said warrants so authorized and issued by the defendants aforesaid, the sum of $250 was paid to the said Everett A. Johnson, as attorney for said Proctor, Jr., and the further sum of $200 was paid for the purpose of satisfying the costs and disbursements incurred by said Proctor and his attorney in the prosecution of said suit. That the sole consideration for the payment of the said total sum of $450 was to carry out the terms of said illegal agreement entered into as hereinbefore shown. That long prior to the date of filing of this action the plaintiffs requested in writing the said W. H. Gilmore, acting as mayor, and the other defendants acting as councilmen of Bay City, Or., to bring this suit or some proper action against the said defendants in order to recover the sum of $450 illegally paid out as aforesaid; but the said mayor and councilmen have failed and refused to act or take any action, and do fail and refuse still to act in the premises; and, upon the failure and refusal of said defendants to take any action therein, the plaintiffs herein now bring this suit as taxpayers of Bay City, Or., on behalf of said Bay City, Or., and on be half of themselves and others similarly situated. "Wherefore, the plaintiff prays for a decree herein compelling the restoration of the funds misappropriated, as aforesaid, and in case such restoration be impossible for a judgment in favor of said Bay City, Or., and against the defendants, and each of them, except the defendant Bay City, Or., for the sum of $450, together with interest thereon at the rate of 6 per cent. per annum from the 1st day of May, 1913, and that plaintiffs recover their costs and disbursements herein, and for such other and further relief as to the court may seem right and equitable." able in our own investigation to find a case directly in point. However, the principle involved is fairly illuminated in the case of Parker v. State ex rel. Powell, 132 Ind. 419, 31 N. E. 1114, in which the Attorney General filed a motion to dismiss the appeal on the ground that the suit was fictitious and collusive. In the opinion Mr. Chief Justice McBride says: "The action is properly brought against the officers named. The facts that such officers, the relator, and attorneys all entertain the same opinion of the laws in question, or are otherwise agreed, is wholly immaterial. The officers named are sued as such, and not as individuals. The relator in such cases cannot be required to forego the right of appealing to the court, simply because the officer against whom he must necessarily proceed agrees with him politically or otherwise. It is also not material at whose suggestion or expense the suit was instituted or carried on." [1-3] The question of whether or not a particular contract is void as being against public policy must be determined largely by the facts of the particular case, and, if the agreement is one that tends to the injury of the public or is inconsistent with sound morality, it will be condemned by the courts; otherwise, it will be upheld. The naked fact that a litigant agrees in advance to pay the expenses of a lawsuit is not sufficient, we think, to brand the contract as being against public policy. To illustrate, assume that A. and B. claim title to the same tract of land, and that they are equally anxious to have their honest contentions adjudicated. Let it be further assumed that A. has ample means to defray the expenses of litigation, but that B. has nothing beyond his claim of title to the land. Would it be contended that an agree To this complaint an answer was filed un-ment between them that B. should institute dertaking to set up a plea in abatement. Plaintiff then moved for a judgment on the pleadings, which was granted, and a judgment entered as prayed for in the complaint, and thereafter defendants applied for leave to answer to the merits, which was refused. Defendants appeal. John M. Gearin, of Portland (C. W. Talmage and E. J. Claussen, both of Tillamook, on the brief), for appellants. R. R. Duniway, of Portland (S. S. Johnson and T. H. Goyne, both of Tillamook, on the brief), for respondents. proceedings to quiet title and that A. should pay all the costs of the contest was immoral or against public policy? We think not. In the case at bar the litigation may have been conducted in perfect good faith by both parties, and with a genuine controversy between them, and yet the poverty of the relator and the deep concern of the municipal corporation and its inhabitants were such as to constitute a complete justification for the contract in question. If it were otherwise, it is incumbent upon plaintiffs to allege in their complaint such facts as would disclose the immorality or injurious tendency thereof. [4] The allegation that the agreement was illegal is a mere conclusion of law. We conclude therefore that the complaint does not state facts sufficient to constitute a cause of suit. This result renders it unnecessary to consider the other questions presented. The decree is reversed, and the cause remanded for further proceedings not inconsistent herewith. BENSON, J. (after stating the facts as above). The first assignment of error challenges the sufficiency of the complaint. Plaintiffs contend very earnestly that the agreement on the part of Proctor and the city of ficials, as set out in the complaint, discloses a void, unconscionable contract, which is against public policy. Defendants insist with equal energy that it is a perfectly honorable and legitimate transaction. Neither, however, have cited any authorities in support MOORE, C. J., and BEAN and HARRIS, of their contentions, and we have not been | JJ., concur. In indictments for misdemeanors, created by statute, it is sufficient to charge the offense in the words of the statute, subject to the qualification that the crime must be set forth with such certainty as will apprise the accused of the offense imputed to him. [Ed. Note.-For other cases. see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. 110.] 2. INDICTMENT AND INFORMATION 57 COMMON-LAW PROCEDURE REQUIREMENTS OF AN INDICTMENT. While it has been the purpose of the Legislature to simplify the old common-law system of criminal jurisprudence, by divesting it of many of its technical requirements which do not affect the rights of the accused, it was not intended to abolish or dispense with any of the essential requirements of an indictment. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 177-179; Dec. Dig. 57.] 3. INDICTMENT AND INFORMATION SCRIPTION OF OFFENSE. 60-DE In an indictment there should be such certainty of description as will identify the offense, so that the defendant may not be indicted for one thing and tried for another, that the defendant may know what crime he is called upon to answer, that the jury may be able to deliver an intelligible verdict, the court to render the proper judgment, and that the defendant may be able to plead his conviction or acquittal in bar of another prosecution for the same offense. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 182, 266, 267; Dec. Dig. 60.] 4. PROSTITUTION 3 INDICTMENTS UNDER STATUTE-SUFFICIENCY OF ACCUSATION. Under Laws 1913, p. 246, § 1, making it a felony for a man to solicit or attempt to solicit any male person to have sexual intercourse with a prostitute, an indictment which charged the defendant with having unlawfully attempted to solicit a male person to have sexual intercourse with a prostitute was not sufficient as it did not give the sex name or identity of the alleged prostitute. [Ed. Note.-For other cases, see Prostitution, Cent. Dig. §§ 4-19; Dec. Dig. 3.] Department 1. Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge. Ernest Underwood was indicted for a statutory crime. From a judgment sustaining a demurrer to the indictment and discharging the defendant from custody, the State appeals. Affirmed. The defendant was charged with a criminal offense under an indictment reading thus: tained the demurrer and discharged the defendant from custody, the state appeals. Ernest R. Ringo, Dist. Atty., of Salem, for the State. Guy Smith, of Salem (Smith & Shields, of Salem, on the brief), for respondent. BENSON, J. The statute under which the action is prosecuted is chapter 140, Laws of 1913, of which section 1 reads as follows: "If any man shall live in or about a house of ill fame, or habitually associate with or live off a common prostitute, or receive from a common prostitute any part or all of her earnings, or solicits or attempts to solicit any male person or persons to have sexual intercourse with a prostitute, he shall be deemed guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than two years nor more than fifteen years." At the threshold of our investigation we are somewhat puzzled in determining the true meaning of the phrase "attempt to solicit" which is used both in the statute and the indictment. Black's Law Dictionary (2d Ed.) defines the word "attempt," as used in criminal law, to be: "An effort or endeavor to accomplish a crime, amounting to more than mere preparation or planning for it, and which, if not prevented, would have resulted in the full consummation of the act attempted, but which, in fact, does not bring to pass the party's ultimate design." There "Solicitation" is defined by the same authority as "asking; enticing; urgent request." Now, it will be noted that the complete, substantive crime denounced by the statute is soliciting a male person to have sexual intercourse with a prostitute. fore combining the definitions above quoted, the crime charged is "an effort to ask, entice, or urgently request a male person to have sexual intercourse with a prostitute, but which effort or endeavor did not result in asking, enticing, or urgently requesting a male person to have such intercourse," which seems to us to involve an absurdity. [1-3] However, without passing upon this problem, we shall consider the sufficiency of the indictment in other respects. Plaintiff insists that the indictment is sufficient, since it substantially follows the language of the statute, and cites a number of cases in support of his contention. This question is discussed in State v. Shaw, 22 Or. 287, 29 Pac. 1028, a leading case in this state in which Mr. Justice Bean says: "It is the settled rule in this state that in indictments for misdemeanors, created by statute, it is sufficient to charge the offense in the words of the statute, subject to the qualification that the crime must be set forth with such certainty as will apprise the accused of the offense im "The said Ernest Underwood on the 1st day of May, 1915, in the county of Marion and state of Oregon then and there being, did then and there unlawfully attempt to solicit a male person, one H. D. Mitchell, to have sexual inter-puted to him." course with a prostitute." Having been arraigned, the defendant demurred to the indictment upon the ground "that the matter set forth therein does not constitute a crime." The court having sus In the foregoing case we find citations to several prior decisions of this court, among them being State v. Packard, 4 Or. 157, in which is found an interesting discussion of the necessity of pleading the circumstances For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes SCISSION-RESTORATION OF CONSIDERATION. Where money is paid as a compromise and not because it is conceded to be due, the party receiving the payment cannot set aside a release given by him on the ground of fraud without restoring the consideration. necessary to constitute a complete crime. | 2. COMPROMISE AND SETTLEMENT 18-REFrom State v. Dougherty, 4 Or. 200, discussing the same question, we quote as follows: "While it clearly appears to have been the purpose of our Legislature to simplify the old common-law system of criminal jurisprudence, by divesting it of many of its technical requirements, such as do not appear to affect the substantial rights of the accused, yet we do not think that it was ever intended to abolish or dispense with any of the essential requirements of an indictment as sanctioned by the wisdom and experience of the past, and as judged and determined by the well-established rules of good reason.' In the same opinion we find quoted with approval from People v. Taylor, 3 Denio (N. Y.) 91, the following language: "It is a general rule that there should be such certainty of description as will identify the offense, so that the party may not be indicted for one thing, and tried for another; certainty is also required, to the end that the defendant may know what crime he is called upon to answer; that the jury may be able to deliver an intelligible verdict, and the court to render the proper judgment; and finally, that the defendant may be able to plead his conviction or acquittal in bar of another prosecution for the same offense." The case of State v. Dougherty, supra, has been cited with approval by this court in State v. Chapin, 74 Or. 346, 144 Pac. 1187. [4] Applying these rules to the indictment before us, the name or identity of the alleged prostitute is not given, nor are there any surrounding facts or circumstances narrated whereby her identity might be established. It must be conceded that the state would be under obligation to prove to the jury that there was a woman in the case, and also that she was a prostitute. The defendant would be entitled to offer evidence tending to show that she was not a prostitute, but a chaste and virtuous female. When the indictment does not in any manner disclose her identity, how can the defendant be prepared to rebut the evidence of her unlawful occupation? It is urged that this doctrine must render the work of the prosecution extremely difficult, and, at times, prevent convictions; but the established principles of procedure cannot be disregarded by the courts in order to facilitate convictions. [Ed. Note.-For other cases, see Compromise and Settlement, Cent. Dig. §§ 75-82; Dec. Dig, 18.] 3. COMPROMISE AND SETTLEMENT 18-RESCISSION-RESTORATION OF CONSIDERATION. A party sui juris, seeking to rescind a compromise agreement for fraud, is not relieved of the obligation to restore the benefits he has received by his inability to do so, and it is not sufficient to offer to set off the amount so obtained against what is claimed from the other party. [Ed. Note.-For other cases, see Compromise and Settlement, Cent. Dig. §§ 75-82; Dec. Dig. 18.] 4. PARTNERSHIP 316-ACCOUNTING-CON DITIONS PRECEDENT-RESTORATION OF CON- Where plaintiff claimed that a partnership existed between her deceased husband and defendant, which defendant denies, a sum paid by defendant to plaintiff for her interest in the partnership must be returned as a condition precedent to a suit for accounting, based on the existence of the partnership. [Ed. Note.-For other cases, see Partnership, Cent. Dig. § 732; Dec. Dig. 316.] Department 1. Appeal from Circuit Court, Tillamook County; Webster Holmes and H. H. Belt, Judges. Suit by Otelia Hadley against C. E. Hadley From a decree dismissing the and others. suit, plaintiff appeals. Affirmed. Oak Nolan, of Portland (B. J. Howland, of Portland, on the brief), for appellant. Ralph R. Duniway, of Portland, and S. S. Johnson, of Tillamook, for respondents. Geo. G. Bingham, of Salem, for administrator. MOORE, C. J. This is an appeal by the plaintiff, Otelia Hadley, from a decree dismissing her suit. On a former appeal herein the plaintiff, as the widow of C. B. Hadley, sought, as against the other heirs of the deceased, to have it decreed that for several years prior to and at the time of her husband's death he had been and was a partner with his son, the defendant C. E. Hadley, The judgment of the trial court must be who was in possession of firm assets of the affirmed; and it is so ordered. value of $255,000, of which the administra MOORE, C. J., and MCBRIDE and BUR- tor, the defendant C. W. Talmage, refused to NETT, JJ., concur. HADLEY v. HADLEY et al. (Supreme Court of Oregon. Feb. 23, 1916.) [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4668; Dec. Dig. 1198.] make an inventory, and that she had a dower estate in the partnership realty and owned a moiety of the personalty thereof. The answer of the defendant C. E. Hadley denied the partnership, and for a separate defense alleged he was the owner of all the property described in the complaint; after the cause was at issue, but before it was tried, that defendant paid the plaintiff $7,000 for all her interests in the property, and she executed to him a deed thereof. The suit not having been dismissed pursuant to such settlement, a supplemental answer was filed, setting up the alleged compromise and praying |