such circumstances that, if one had brought an action against the other, a counterclaim could have been set up, the two demands shall be deemed compensated so far as they equal each other. "Code Civ. Proc. § 440.

Plaintiff at the oral argument stipulated in open court that, if this court should be of the opinion that the evidence should have been allowed we might order such a modification of the judgment as should give the defendant the full benefit of the matter alleged and attempted to be proved. The amount alleged by defendant to have been by him advanced to plaintiff is $390. The court charged defendant with interest at varying rates to February 19, 1902, and from that date to entry of judgment at 7 per cent. With the aid of counsel we have calculated the interest on $390 from January 1, 1901, to February 1. 1902, at 3 per cent., the highest rate charged against defendant up to the latter date, and find that the principal and interest then amounted to $405.85, which, at 7 per cent. up to the date of the entry of the judgment, would make the principal and interest amount to $455.91.

The judgment is therefore modified, by deducting therefrom the sum of $455.91 as of the date of the entry thereof, and, as so modified. it is affirmed: and the order denying the motion for a new trial is likewise affirmed.

We concur: COOPER, P. J.; KERRIGAN, J.

STATE v. CARMODY. (Supreme Court of Oregon. Aug. 20, 1907.) CRIMINAL LAW-JUDICIAL NOTICE.

A precinct being a subdivision of a county, set off and established by the county court under B. & C. Comp. § 2762, with power in that tribunal to biennially change its boundaries, courts cannot take judicial notice that a certain precinct is in a certain town.

[Ed. Note.--For_cases in point, see Cent. Dig. vol. 14, Criminal Law, § 705.]

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

Henry Carmody appeals from a conviction. Reversed, and new trial ordered.

W. H. Holmes, for appellant. John H. McNary, Dist. Atty., for the State.

BEAN, C. J. The defendant was tried and convicted of selling intoxicating liquor to one Joe Heenan in Horeb precinct, in Marion county, in violation of an order of the county court prohibiting the sale of such liquor in such precinct, made in pursuance of the provision of the local option law adopted by the people June 6, 1904. The proof tended to show that defendant sold intoxicating liquor to the person named in the information in the town of Gates, Marion county; but there is no proof that Gates is in Horeb pre

cinct. The court, however, assumed to know judicially that such is the case, and so instructed the jury.

This, we think, was error. "Courts will generally take notice," said Greenleaf, "of whatever ought to be generally known within the limits of their jurisdiction." 1 Greenleaf Ev. (14th Ed.) § 6. They will, therefore, know judicially, whatever is established by law (B. & C. Comp. § 720), and as a consequence the location of counties, towns, pre

ets, or other local subdivisions, so far as they may be disclosed by public statute (16 Cyc. 859; 17 Am. & Eng. Ency. [2d Ed.] 911), but not where such local subdivisions have been created and their boundaries established by some court, board, or commission. Thus a court will not judicially notice a county created by county commissioners under a general law (Buckinghouse et al. v. Gregg 19 Ind. 401), or a township formed by a board of county commissioners (Bragg et al. v. Board of Commissioners of Rush County et al., 34 Ind. 405), or a town incorporated under a general law (City of Hopkins v. Kansas City, St. Joseph & Council Bluffs R. R. Co., 79 Mo. 98), or that an incorporated town is within a certain township, the boundaries of which were established by the county court (Backenstoe v. Wabash, St. Louis & Pacific Ry. Co., 86 Mo. 492). Horeb precinct is a subdivision of a county, set off and established by the county court. B. & C. Comp. § 2762. Its boundaries are subject to change by that tribunal biennially, and the court cannot take judicial notice of such boundaries at any given time, or that a particular town is within such precinct. These are matters of fact, and, when material, should be proved.

Judgment reversed, and new trial ordered.

(49 Or. 577)

DAVIDSON v. COLUMBIA TIMBER CO. (Supreme Court of Oregon. Aug. 20, 1907.)

1. APPEAL-FILING TRANSCRIPT-TIME- ExTENSION-STIPULATION.

The time fixed by law for the filing of the transcript on appeal cannot be extended by stipulation of the parties without an order of court based on such stipulation, filed before the time fixed by law has expired.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 3, Appeal and Error, § 2741.] 2. SAME-ORDER NUNC PRO TUNC.

Where no order was granted by the trial judge on a stipulation extending the time for the filing of a transcript on appeal until after the time fixed by law had expired, the court had no power thereafter to grant an order extending such time to the date fixed in the stipulation by directing that the same be entered nunc pro tunc as of the date of the stipulation.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2741.]

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

Action by E. L. Davidson against the Columbia Timber Company. From a judgment

In Welch v. Keene, 21 Pac. 25, 8 Mont. 305, cited by defendant, the appeal was dismissed, which left the original decree rendered in the court below the decree in the case unaffected by the appeal, and is therefore not in point. Elliott, App. Procedure, § 576, says: "No modification of the judgment or decree directed by the appellate tribunal can be made by the trial court. No provision can be ingrafted upon it, nor can any be taken from it." And in section 579, in speaking of affirmance of judgments at law, he says: "This confirmation operates to a limited extent as a merger, inasmuch as it concludes the trial court and the parties, and absolutely precludes them from modifying or abrogating the judgment affirmed. The authority of the trial court as to all matters involved in the appeal and adjudicated by the judgment there rendered is at an end."

In the case at bar, after findings and decree by the lower court, the suit was appealed, and the cause tried anew here upon the law. and facts. This court rendered its own decree thereon, which, upon mandate of this court, was entered in the lower court for enforcement, and the original decree rendered by the circuit court thereby became functus officio; and the decree of this court is final, and not within the power of the lower court to change or modify.

Therefore the lower court was without jurisdiction to entertain the motion, and the order denying it is affirmed.

(49 Or. 492)

WILLIAMS et al. (LEONARD, Intervener), v. COMMERCIAL NAT. BANK OF PORTLAND et al.

(Supreme Court of Oregon. Aug. 20, 1907.) LIMITATION OF ACTIONS-ACCRUAL OF CAUSE OF ACTION-CREDITORS' SUIT.

Where a corporation made a transfer to defendant, valid as between them and only constructively fraudulent as to plaintiffs, creditors of the corporation, because it deprived it of means to pay its debts, plaintiffs' remedy against defendant, which is equitable, is not primary; but judgment against the corporation and execution thereon returned nulla bona are prerequisites to its suit against defendant, so that limitations against the suit commence to run, not from the time of the transfer, or even from the time of plaintiffs' discovery of the property, but only from the return of the execution nulla

bona.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 336.]

On motion for rehearing. Denied.
For former report, see 90 Pac. 1012.

EAKIN, J. By the motion for a rehearing defendant insists that, as plaintiffs are not seeking to be subrogated to the right of defendant bank, but are proceeding upon a liability in their own favor, they need not reduce their claims to judgments against the defendant bank, but may bring suit against the defendant company directly, and there

fore the statute of limitations commenced to run from the time of the taking over the property of the defendant bank. In the opinion we have treated this transfer as a valid one between the defendant bank and defendant company, and only constructively fraudulent as to plaintiffs, because it deprived defendant bank of the means with which to pay its debts, and the remedy of the plaintiffs is not in the right of defendant bank, but in their own right, by reason of the equitable lien existing in favor of the creditors of the corporation bank. This is fully discussed in the opinion.

Counsel cite authorities in the motion to the effect that, where plaintiffs' remedy is primary and direct, the creditor need not procure judgment and return of execution before suing the transferee, but may bring suit in the first instance against it. But these are cases in which the primary liability is created by statute, and are therefore not in point. We believe that Case v. Beauregard, 101 U. S. 68S, 691, 25 L. Ed. 1004, states the rule correctly, viz.: "Whenever a creditor has a trust in his favor, or a lien upon property for the debt due him, he may go into equity without exhausting legal processes or remedies. * ** Indeed, in those cases in which it has been held that obtaining a judgment and issuing an execution is necessary before a court of equity can be asked to set aside fraudulent dispositions of a debtor's property, the reason given is that a general creditor has no lien; and, when such bills have been sustained without a judgment at law, it has been to enable the creditor to obtain a lien, either by judgment or execution. But when the bill asserts a lien, or a trust, and shows that it can be made available only by the aid of a chancellor, it obviously makes a case for his interference." But in the case at bar, although the creditor has an equitable lien, it is not specific, and he has no remedy upon it if the debtor has property subject to execution, and, as said in Case v. Beauregard, supra: "In some cases. also, such an averment (of judgment and execution returned) is necessary to show that the creditor has a lien upon the property he seeks to subject to the payment of his demand." And that is the case here. This equitable lien is not available to the creditor until he has disclosed that the debtor is insolvent; and, further, one of the first requisites in maintaining a creditors' bill is that the creditor has established his claim or debt by judgment at law. 12 Cyc. 9. This court has frequently held that the debt cannot be litigated in equity, but before the creditor can maintain such suit he must reduce his claim to judgment at law. Fleischner v. Bank of McMinnville, 36 Or. 553, 54 Pac. 884, 60 Pac. 603, 61 Pac. 345. This was not a debt for which the defendant company was primarily liable, nor may the plaintiff's look pri marily to this lien. This right is upon a

Upon the statement of facts in this complaint, plaintiffs had no standing without the allegation of judgment and execution returned nulla bona against defendant bank. D. A. Tompkins Co. v. Catawba Mills (C. C.) 82 Fed. 780. We understand that the case of Taylor v. Bowker, 111 U S. 110, 4 Sup. Ct. 397, 28 L. Ed. 368, is directly in point upon this question. In that case, prior to 1867, the insurance company had wrongfully, as to creditors, made a division of a portion of its property among stockholders, and afterward surrendered its charter. Bowker obtained judgment on April 4, 1868, against the insurance company upon a suit commenced prior to the surrender of the charter. Execution was returned nulla bona July 8, 1868, and on April 11, 1874, being more than six years after the judgment, but less than six years from the return of execution, Bowker commenced this suit to reach property in the bands of the defendants, received by them prior to the surrender of the insurance company's charter; and it was held that judgment and execution were essential to Bowker's remedy against defendants to reach equitable assets, regardless of the statute, which dispensed with a return of the execution. Although the question was not raised in Bartlett v. Drew, 57 N. Y. 587, cited in the opinion, it is held that, before there is a remedy to follow the equitable lien of a creditor upon the assets of a corporation, the legal remedy must be exhausted. In Christensen v. Quintard, 36 Hun. (N. Y.) 334, the bridge company distributed to its stockholders, including Quintard, a large amount of mortgage bonds without consideration. Plaintiff recovered judgment for his debt against the defendant company, and had execution returned nulla bona, and he brought this suit against defendant to recover the value of said bonds received by him. Defendant insisted on the statute of limitations, claiming that, if the debtor was barred, defendant also was barred. The court holds that plaintiff's right does not depend upon the right of the bridge company to recover from the defendant, but upon his own right to enforce the creditor's equitable lien upon the assets of the corporation, and that his remedy does not arise, or the statute begin to run, until judgment and return of execution, citing Bartlett v. Drew, supra, Scovill v. Thayer, 105 U. S. 143, 26 L. Ed. 968, and Taylor v. Bowker, 111 U. S. 110, 4 Sup. Ct. 397, 28 L. Ed. 368.

The foundation of the proceeding by a creditor to follow the property of an insolvent corporation in the hands of a third party is not identical with such a proceeding to reach property of an insolvent individual fraudulently conveyed. The authorities clearly maintain a distinction. The quotation in the opinion from 10 Cyc. 1265, which was

of Thompson on Corporations, we think states the law correctly as gathered from the cases. In Clapp v. Peterson, 104 Ill. 26, 31, the corporation had bought in its own stock, giving in exchange therefor certain city lots, and the creditor, after the judgment obtained and execution returned nulla bona, brought suit against the former stockholder to follow the property so conveyed by the corporation. The court say: "We see nothing to show that the transaction in the present case was not in good faith, that there was any element of fraud about it, or that there was anything in the apparent condition of the company to interfere with the making of the exchange that was had. It is only as injuriously affecting the interests of creditors, we think, that the transaction can be questioned, and it is in that view that it must be considered and passed upon. In Sanger v. Upton, 91 U. S. 60, 23 L. Ed. 220, it is laid down: "The capital stock of an incorporated company is a fund set apart for the payment of its debts. It is a substitute for the personal liability which subsists in private copartnerships. When debts are incurred, a contract arises with the creditors that it shall not be withdrawn or applied, otherwise than upon their demands, until such demands are satisfied. The creditors have a lien upon it in equity. If diverted, they may follow it as far as it can be traced, and subject it to the payment of their claims.'" Therefore we conclude

that although the plaintiffs are not suing in the right of the defendant bank, but in their own right to follow the property of a corporation under this equitable lien, yet they cannot pursue that remedy until the claims have been reduced to judgment and the insolvency of the defendant bank is disclosed; and the statute of limitations will run not from the time of the discovery by the plaintiffs of the transfer of the property, but from the time that they are in a position to institute the suit, viz., from the date of the return of the execution nulla bona.

Motion for rehearing is denied

(49 Or. 605).

STATE v. LUPER. (Supreme Court of Oregon. Aug. 20, 1907.) 1. CRIMINAL LAW-CONTINUANCE.

In a trial for perjury in swearing to the complaint upon which defendant procured a divorce, there was no abuse of discretion in deny ing a continuance until the wife's application to open the decree could be disposed of; the manifest purpose being to obtain delay until by the opening of the decree the marriage relation should be restored, thus disqualifying her to testify against him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1311.]

2. WITNESSES - HUSBAND AND WIFE - COMMUNICATIONS.

B. & C. Comp. § 724, providing that neither husband nor wife may be examined, during the marriage or afterwards, as to any communica tion made by the one to the other, is inapplica

ble in a criminal trial; and, in a trial for perjury in swearing to a complaint upon which defendant obtained a divorce for the wife's alleged desertion of him, he could testify concerning statements made to him during the marriage respecting her intent to desert him.

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

T. J. Luper was convicted of perjury, and he appeals. Reversed and new trial ordered.

In July, 1906, the defendant commenced a suit for divorce against his wife, Lizzie R. Luper, in department No. 2 of the circuit court for Marion county, alleging that she deserted him in 1904 without cause or provocation and against his will and consent, and had continued her desertion ever since. Service of summons was had upon her by publication, and, as she did not appear within the time required, her default was regularly entered, and after trial a decree of divorce was rendered as prayed for in the complaint. A short time thereafter Mrs. Luper learned of the decree, and immediately came to Oregon and caused the arrest of defendant for perjury in swearing to the complaint, and at the same time she made an application to open the decree, on the ground that

she had a meritorious defense to the suit and had never received a copy of the complaint or summons. Pending her application to open the decree, the district attorney filed an information in department No. 1 of the circuit court for Marion county against defendant, charging him with perjury in verifying the complaint in the divorce suit. When the application to open the decree came on for hearing in department No. 2, defendant, by his attorneys, appeared and consented to the allowance of such motion; but the district attorney interposed, and on his suggestion the court declined to make the order, but took the matter under advisement. The defendant thereupon moved for a postponement of the criminal case until his wife's application to open the decree in the divorce suit could be disposed of; but this motion was denied, and the defendant tried and convicted. From a judgment sentencing him to the penitentiary, he appeals, assigning, among other errors, the overruling of his motion for a continuance and refusal of the trial court to permit him to testify as to statements made to him by his wife regarding her intention to desert him.

W. H. Holmes and Carey F. Martin, for appellant. John H. McNary, Dist. Atty., for respondent.

BEAN, C. J. (after stating the facts). There was no abuse of discretion in denying the motion for a continuance. The application therefor did not set out a single fact to entitle defendant to a postponement. Its manifest purpose was to secure a delay until the decree theretofore granted in the divorce suit could be set aside, and the relation of husband and wife between defendant and

Mrs. Luper restored, thus disqualifying her from testifying against him in the criminal action without his consent. Certainly such a state of facts did not entitle him to a continuance as a matter of right. Whether the ends of justice would have been subserved thereby was a question for the trial court, and with its conclusion we must decline to interfere.

While the defendant was on the stand, testifying in his own behalf, his counsel offered to interrogate him concerning statements made to him by his wife during the marriage regarding her intention to desert him; but the court, on the objection of the state, refused to allow him to do so, for the reason that evidence of any communications between defendant and his former wife, during their marriage, was incompetent. Section 724 of the Civil Code provides that a husband and wife cannot be examined, during the marriage or afterwards, as to any communications made by the one to the other. Whether this section includes all communications between husband and wife, or only such as are confidential, it is not necessary now to consider, because it does not apply to criminal prosecutions. State v. McGrath, 35 Or. 109, 57 Pac. 321. The Criminal Code is complete within itself as to the competency of the husband or wife to testify in criminal prosecution against the other, and contains no provision governing the proof of communications made by the one to the other. It simply procused the wife shall be a competent witness, vides that when a husband is the party achusband shall be a competent witness; but and when the wife is the party accused the neither shall be compelled or allowed to testify, unless by the consent of both, except in cases of personal violence (B. & C. Comp. § 1401), leaving the question of the competency of their testimony either during or after the marriage to be determined by the common law. It is a rule of law, founded upon public policy, the object of which is to secure domestic happiness and tranquility, that "all confidential communications between husband and wife, and whatever comes to the

knowledge of either by reason of the hallowed confidence which that relation inspires, cannot be afterwards divulged in testimony" (Greenl. Ev. § 337), even after the marriage is dissolved by death or divorce.

But the. rule which renders incompetent proof of communications between husband and wife, like that which preserves inviolate communications between attorney and client. is subject to some exceptions dictated by natural justice, and among these is that whenever it becomes necessary to disclose such communications, in order to protect the personal rights or liberty of the party to whom they were made, he is relieved from the obligation of secrecy which the law otherwise imposes. Thus, when a disclosure of communications by a client to his attorney is necessary to protect the personal rights of