ABANDONMENT.

Of appeal. See Appeals, II, D.
Of water rights. See Waters, VII.

ABATEMENT.

I. ANOTHER ACTION PENDING, 1-6. IV. DEATH OF PARTY AND REVIVAL OF ACTION, 7, 8.

V. WAIVER, TIME AND MANNER OF PLEADING, ETC., 9-12.

I. ANOTHER ACTION PENDING.

See, also, 1 Ruling Case Law (R. C. L.), 9. 1. Sections 68, 71, L. O. L., relating to grounds of demurrer to a complaint, do not change the nature of the plea of "another action pending"; the plea still being in abatement of the action against which it is interposed.-Beneke v. Tucker, 90 Or. 230, 176 Pac.

183.

2. The rule that a subsequent action will be abated by the pendency of a prior action between the same parties on the same cause of action is generally confined to those cases where both actions are pending in courts of the same state.-Beneke v. Tucker, 90 Or. 230, 176 Pac. 183.

3. While the pendency of a prior action in another state does not entitle a party as a matter of right to an abatement of the second action, the court may in its discretion postpone the second action until after deci sion of the first.-Beneke v. Tucker, 90 Or. 230, 176 Pac. 183.

4. The sole object of a plea in abatement is to protect defendant from another suit brought by some person who might be the real party in interest.-Clarina Trust & Savings Bank v. Doty, 83 Or. 214, 163 Pac. 418.

5. Suit against husband and wife, commenced against the husband alone July 17th, amended complaint making the wife a party defendant being filed July 31st, was "pendSupp. Or. Dig.-1

(1)

ing" when the wife's suit against plaintiff was instituted July 28th, so that denial of defendants' plea in abatement on the ground that a prior suit instituted by the wife against plaintiff was pending was proper.Oregon-Wash. R. & N. Co. v. Reed, 87 Or. 398, 169 Pac. 342, 170 Pac. 300.

6. In plaintiff's action of slander, where defendant asserted the pendency of another action in abatement, and it appeared that a judgment had been entered in the former ac tion, which was erroneous for failure to award costs, such judgment must, though erroneous, be regarded as having terminated the former suit, where defendant took no steps to correct such judgment.—Clark v. Morrison, 80 Or. 240, 156 Pac. 429.

Annotations.

What identity of issues is necessary to abate second action. L. R. A. 1918A,

5.

What identity of issues is necessary to cause prior action to abate suit for accounting or vice versa. L. R. A. 1918A, 15, 30.

Effect of suit pending against lessee of railroad for injuries caused by its negligence as bar to action in another court against the lessor or vice versa. L. R. A. 1918E, 272.

What identity of issues is necessary to cause prior action to abate subsequent suit to quiet title or vice versa. L. R. A. 1918A, 25.

IV. DEATH OF PARTY AND REVIVAL OF ACTION.

7. Section 38, L. O. L., made applicable to suits in equity by section 395, providing that no action shall abate by the death of the party if the cause of action survive or continue, and that in case of the party's death the court may allow the action to be continued against his successor in interest, contemplates the existence and pendency of an action at the time of the death, and did

not apply where the party named therein as sole defendant had died several months before the filing of the complaint, as there was then no defendant at all and no action to abate or continue.-Robinson v. Scott, 81 Or. 20, 158 Pac. 268.

8. Where the party named by the complaint as sole defendant died before the filing of the complaint, a judgment against such party would have been a nullity, and the complaint upon which the judgment was based would be as much of a nullity as the judgment itself.-Robinson v. Scott, 81 Or. 20, 158 Pac. 268.

Annotations.

Effect of death of one having right to contest will or codicil. L. R. A. 1918A, 477.

Survival of action for negligence of attorney. Ann. Cas. 1917B, 48.

Survival of right of action for conspiracy to restrain trade. Ann. Cas. 1916Č, 726.

Validity of statute providing for survival of action for personal injuries after death of person injured. Ann. Cas. 1917E, 1171.

V. WAIVER, TIME AND MANNER OF PLEADING, ETC.

9. Where defendants, sued by a foreign corporation, filed a plea in abatement that the corporation had not complied with the statutes authorizing foreign corporations to transact business within the state, they did not waive such plea by answering and pleading to the merits when the plea was overruled.Weiser Land Co. v. Bohrer, 78 Or. 202, 152 Pac. 869.

10. Demurrer, in an equity bill to stay proceedings at law, on the ground that there is another action on the same subject matter between the same parties pending, should be overruled; the pendency of the law action being a prerequisite in such case to the filing of the bill.-Miller v. Fisher, 77 Or. 532, 151 Pac. 971.

11. A plea in abatement cannot be joined with a plea in bar, and must be disposed of before an answer to the merits can be considered. Klamath Lumber Co. v. Bamber, 74 Or. 287, 142 Pac. 359, 145 Pac. 650.

12. Where a complaint in an action for deceit practiced on plaintiff in exchange of personal property for real estate stated a cause of action, and did not state that the contract was made by or through an agent, or alleged representations were made to an agent of plaintiff, the defense in such exchange dealt with another person who purported to act as principal, and that plaintiff had no capacity to sue as undisclosed principal, was not in the nature of a plea in abatement.-Crowder v. Yovovich, 84 Or. 41, 164 Pac. 576.

ABORTION.

See Criminal Law, XI, A.

ABSTRACT OF TITLE. See Vendors and Purchasers.

ABUTTING OWNERS. See Real Property.

ACCESSORY, ACCOMPLICE. See Criminal Law; Evidence.

ACCIDENT INSURANCE. See Insurance.

ACCOUNTS AND ACCOUNTING.

See Administrators and Executors; Guardian and Ward; Partnership; Principal and Agent; Trusts.

See, also, 1 Ruling Case Law (R. C. L.), 204.

1. An account stated may result from a bank writing up and delivering a pass-book to a depositor, if he fails to object in a reasonable time.-Verrell v. First Nat. Bank, 80 Or. 550, 157 Pac. 813.

2. A claim for unliquidated damages cannot be the basis of an account stated.-Johnson v. Stillwell, 90 Or. 211, 176 Pac. 123.

3. Unless a debtor objects in a reasonable time to an account presented, it will be considered as stated.-Carlon v. First Nat. Bank, 80 Or. 539, 157 Pac. 809.

4. There is an account stated and settlement barring action for overtime, where an employee each month signs a time check stating amount of time and amount due, and receives payment without protest or objection. Sumpter v. St. Helens Creosoting Co., 84 Or. 167, 164 Pac. 708.

5. An action against a city by its contractors to erect a dam to recover on a quantum meruit for the excess cost of doing the work incurred on account of the city's increasing the amount of excavation and delaying the work, was not an action on an account.Hayden v. City of Astoria, 84 Or. 205, 164 Pac. 729.

6. Where contractors with a city to erect a dam frequently complained to the city's representatives that much more excavation was demanded of them than they were required by the contract to render, and notified the city's representatives several times that they would expect additional compensation, there was not an accounting month by month as matter of law because the contractors in a number of cases marked monthly estimates of their work O. K. over their signature and accepted 90 per cent of the contract price

therefor in accordance with the contract, the elements of estoppel being lacking.-Hayden v. City of Astoria, 84 Or. 205, 164 Pac. 729.

7. Courts of equity have jurisdiction to settle accounts whenever a fiduciary relation exists between the parties and the duty to render an account to one of the parties rests on the other, and a person is said to act or receive money or contract a debt in "fiduciary capacity" where the business which he transacts or the money or property which he handles is not his own or for his own benefit and the term is not restricted to technical or express trusts, but includes such offices or relations as those of attorney at law, guardian, executor, broker, agent, director of corpora tion, etc.-Templeton v. Bockler, 83 Or. 494, 144 Pac. 405.

8. Averment of the complaint that defendant has at all times refused to render to plaintiff a statement of account implies a previous demand, and is equivalent to an allegation of demand and refusal.-Heidel v. Shute, 86 Or. 210, 167 Pac. 586, 168 Pac. 298.

9. Where, after an account was stated between a debtor and a creditor, the creditor agreed to accept in payment of the account stock of a corporation organized to take over and operate certain property, and the creditor received the stock but did not accept it because the corporation did not take over and operate the property, there was no novation, and the creditor could sue on the account stated. Clarke-Woodward Drug Co. v. Hot Lake Sanatorium Co., 75 Or. 234, 146 Pac. 135.

10. Where a complaint gives a history of all the facts leading up to the issuance of certificates, each acknowledging the receipt of $6,000 for investment, in place of prior similar certificates, each acknowledging receipt of $3,000 for investment, and states the conclusion that the new certificates constituted an account stated, this did not constitute a sufficient pleading of an account stated.— Smith v. Kinney, 72 Or. 514, 143 Pac. 901, 1129.

11. Where an account is rendered and retained without timely objections, the implied acquiescence is only prima facie sufficient evidence of the debt shown by it.-Carlon v. First Nat. Bank, 80 Or. 539, 157 Pac. 809.

12. In a suit for an accounting between plaintiff and defendant for commissions received from the sale of real estate, evidence held to show that the transaction between the parties was ended and that defendant had accounted.-Bolin v. Walters, 77 Or. 501, 151 Pac. 716.

13. In an action for an accounting under an agreement to divide the cost of a building erected on premises leased by the parties to the contract, opinion evidence introduced with consent of the parties-defendant's evidence being discarded because he had fraudulently raised receipts for money paid to inflate the cost of the building-considered, and the cost of the building determined.-Toomey v. Casey, 76 Or. 298, 147 Pac. 920.

14. The burden of proving an account stated is on the party setting it up.-Carlon v. First Nat. Bank, 80 Or. 539, 157 Pac. 809.

15. In an action against a corporation and its president on an account stated, where there was no evidence or contention that the bill was the president's bill, or that in promising it would be paid, he acted in any capacity other than as president, an instruction that, if he promised to pay the bill, he was liable, and that it did not matter whether it was unreasonable or what it was for or anything about it, providing that it was based on some transaction between plaintiff and the president, and that, "if it was my bill, or your bill," the president's agreement could not support an action on a stated account, was erroneous.-Wilson v. Investment Co., 80 Or. 233, 156 Pac. 249.

16. Under the facts shown in an action against a bank for an alleged balance of deposit, held that whether an account had become stated by retention by the depositor without objection was a question for the jury. Carlon v. First Nat. Bank, 80 Or. 539, 157 Pac. 809.

17. If the facts be clear or undisputed, the court should declare whether an account was stated, but, if not, the disputed facts and the question of whether the delay in objecting was reasonable should be left to the jury. Carlon v. First Nat. Bank, 80 Or. 539, 157 Pac. 809.

18. An account stated may be surcharged and impeached for fraud, error or mistake.Carlon v. First Nat. Bank, 80 Or. 539, 157 Pac. 809; Verrell v. First Nat. Bank, 80 Or. 550, 157 Pac. 813.

19. One to whom a statement of account was rendered, though having made no objection, may impeach it for fraudulent concealment of facts.-Haines v. First Nat. Bank of Roseburg, 89 Or. 42, 172 Pac. 505.

20. One is not precluded from disputing an account as stated because of his failure to object, if his failure was induced by fraud of the other party.-Verrell v. First Nat. Bank, 80 Or. 550, 157 Pac. 813.

Annotations.

Effect of retaining statement of account to render it an account stated. L. R. A. 1917C, 447.

ACCRETION.

See Waters and Watercourses.

ACKNOWLEDGMENT. See Deeds; Mortgages,

ACQUIESCENCE.

See Dedication; Estoppel.

ACTIONS.

I. GROUNDS AND CONDITIONS PRECEDENT, 1-3.

II. NATURE AND FORM, 4–16.

A. Generally, 4-6.

B. Tort and Contract, 7.

C. Law and Equity, 8, 9.

D. Election of Remedies, 10-16.

III. JOINDER, CONSOLIDATION, SEVERANCE, 17-21.

For matters relating to various actions, see the specific titles.

See, also, 1 Ruling Case Law (R. C. L.), 312.

I. GROUNDS AND CONDITIONS PRECEDENT.

1. The very existence of a cause of suit implies that there is some competent person to be sued, and for that reason a suit cannot be maintained if a defendant is lacking.-Robinson v. Scott, 81 Or. 20, 158 Pac. 268.

2. A suit by a taxpayer to enjoin a city from contracting for the construction and operation of a railroad, as authorized by the charter, and from issuing bonds for the construction thereof, will not be dismissed as fictitious merely because the suit is a friendly one, pursued without rancor, and with the understanding that unnecessary delays will not be permitted.-Pearce v. Roseburg, 77 Or. 195, 150 Pac. 855.

3. Where the complaint alleged a joint liability of all defendants, the court may proIceed to trial as to those who have answered and joined issue without first entering default and judgment against others who had been served but did not appear, for the old technicality with respect to joint actions has been relaxed, and, though a joint liability is averred, recovery may be had on proof of a several liability.-Hewey v. Andrews, 82 Or. 448, 159 Pac. 1149, 161 Pac. 108.

II. NATURE AND FORM.

A. GENERALLY.

4. Though under section 1, L. O. L., providing that the distinction theretofore existing between forms of actions at law is abolished, and that there shall be but one form of action at law for the enforcement of private rights or the redress of private wrongs, forms of action have been abrogated, the substance of the common-law actions remains. Watkins v. Record Photo. Abstract Co., 76 Or. 421, 149 Pac. 478.

5. Where a complaint alleges the conversion of personalty, the breach of an agree ment as to the manner in which business should be conducted, and misrepresentations as to the ownership of property involved all resulting in the destruction of plaintiff's business, the action is not in the nature of trover, but of action on the case.-Cash v. Garrison, 81 Or. 135, 158 Pac. 521.

6. Interposing a demurrer to a sufficient cross-bill for specific performance in an ejectment proceeding and electing to stand there

on deprives the plaintiff of the right to put in a defense by way of answer in the ejectment suit, and in view of section 390, L. O. L., such suit must be perpetually enjoined.— Columbia River Co. v. Smith, 83 Or. 137, 163 Pac. 309.

Annotations.

Form of action for negligence or breach of duty by attorney. Ann. Cas. 1917B,

45.

Nature of action or proceeding for violation of municipal ordinance. Ann. Cas. 1917A, 330.

Nature of action for penalty for violation of intoxicating liquor statute. Ann. Cas. 1916E, 870.

Right to sue in forma pauperis at common law or in the absence of statute. L. R. A. 1918B, 319.

B. TORT AND CONTRACT.

7. The chattel mortgagee having been fully aware of the landlord's property in the money, and having gained possession of the money which belonged to the landlord, although an action in tort for damages would lie upon such transaction, the landlord had an election to proceed upon an implied contract as for money had and received to his use.-La Grande Nat. Bank v. Oliver, 84 Or. 582, 165 Pac. 682,

Annotations.

May action for alienation of affections rest upon a breach of contract or negligent tort. L. R. A. 1917B, 680.

C. LAW AND EQUITY.

8. Under a statute recognizing a clear distinction between actions at law and suits in equity, an award of a remainder due on a conditional contract could not be determined in replevin.-Maxson v. Ashland Iron Works, 85 Or. 345, 166 Pac. 37, 167 Pac. 271.

9. Where the defendant in an action at law filed a complaint in equity, under section 390, L. O. L., against the plaintiff in the action at law and other parties, a party who answered to the merits and defended against the complaint, without demurring to it or to the jurisdiction of equity to try the cause, made the equitable forum a matter of his own selection, and could not afterward insist that the action should have been tried at law. Davis v. First Nat. Bank of Albany, 86 Or. 474, 161 Pac. 93, 168 Pac. 308.

D. ELECTION OF REMEDIES.

10. A person commencing a suit in ignorance of substantial facts affording a different remedy, may, upon acquiring such information, adopt the alternate remedy.-Oregon Mill & Grain Co. v. Hyde, 87 Or. 163, 169 Pac. 791.

11, 12. Plaintiff, who agreed to perform for a municipality engineering services necessary to paving of street in consideration of payment of a percentage of the cost, not having received full payment, sued the municipality