an explicit statement of the relief sought; but it does not set out, as is usual, the conditions of the mortgage. Confessedly, the subject-matter was within the equity jurisdiction of the court. It had jurisdiction of the parties, and the facts set up were sufficient to authorize the court to hear and determine them. It may be conceded that, if the objection now urged had been made by the defendants in that suit, the court would have refused to proceed until the plaintiff obviated it; yet the failure to make it waived it, and authorized the court to proceed to final determination by decree, which they cannot now question or impugn, much less the plaintiff in this collateral proceeding. In any event, and in any view, no result, upon objection, could have defeated the right of the plaintiff to amend, and have his rights adjudicated under the mortgage. The defendants did not see fit to object. What right has the plaintiff in this proceeding to complain? No right of his has been abridged or impaired, or any fraud practiced upon him. In fact, it may be well doubted whether the allegation complained of is insufficient in the particular noted. However that may be, we are satisfied that the court had jurisdiction of the subject-matter and the parties, and that the decree is not void. It is claimed that the appointment of the referee by the judge at chambers, for the purpose of taking testimony concerning the assignment to the defendant King, was unauthorized by law, and that such evidence cannot be considered. It is admitted that without this evidence there is no proof of the assignment to the defendant King. Upon that statement of the case an important question might be presented. But the record discloses that at the ensuing March term the plaintiff obtained leave to file an amended complaint, and then and there it was mutually agreed that the findings of fact before made be considered as the facts upon the issues made by the amended complaint, and that the suit proceed to trial upon the report of the testimony made by the referee. In this view it is immaterial whether the appointment was irregular or not. The parties have stipulated in court to proceed to trial upon the evidence reported by the referee, have argued their case, and submitted it to the court, and a decree has been rendered, and they, or either of them, cannot now avoid it. Without taking any evidence, they might have stipulated the facts to be as reported, and proceeded to trial upon them. Upon the whole, we find no error, except in the court's conclusion of law, and, evidently, this occurred from the pressure of business, which deprived the learned judge of time for deliberation. The decree must be reversed, and the bill dismissed. (15 Or. 148) STATE ex rel. KNOTT, Adm'r, etc., v. CRANE and others. (Supreme Court of Oregon. April 21, 1887.) BONDS ARREST-CONTEMPT. Where, on a commitment for contempt, an undertaking with sureties has been given, as required by Civil Code Or. 7 647, to appear and answer the charge, and be amenable to the order and process of the court, and, if convicted, to appear for judgment, and render one's self in execution thereof, and the party committed appears by counsel, and is tried and fined for contempt, and pays the fine, neither he nor his sureties will be liable upon the undertaking. Appeal from a judgment of the circuit court, Douglas county. J. W. Hamilton, Dist. Atty., and W. R. Willis, for S. W. Crane and others, appellants, defendants. James F. Watson, for respondents. THAYER, J. This suit had its origin in a suit in favor of Joseph Knott, deceased, against said S. W. Crane and Elizabeth Crane, to foreclose a mortgage executed by them upon certain premises upon which was situated a house insured in their favor, and which had been burned, and the insurance money became payable to them. Said Joseph Knott, deeming his surety inadequate under the mortgage, had the Cranes enjoined from collecting the insurance money, in order to have it applied upon any deficiency of his debt which might be found due after a sale of the mortgaged premises, and the application of its proceeds to its payment. The Cranes, however, in violation of the injunction, collected and used for their own benefit $730 of the money, and Knott had proceedings instituted against them for a criminal contempt. A warrant was issued for their arrest, and upon which they were arrested, and thereupon they and the said W. E. Crane and E. S. Crane entered into an undertaking, of which the following is a copy: "State of Oregon, County of Douglas-ss.: "IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF DOUGLAS. 66 "State of Oregon vs. S. W. Crane and Elizabeth Crane. 'Whereas, a warrant of arrest having been issued on the twenty-fourth day of October, A. D. 1883, in the circuit court for the county of Douglas, charging S. W. Crane and Elizabeth Crane with crime of contempt of court, and they having been duly admitted to bail in the sum of $500 each, we, S. W. Crane and Elizabeth Crane, principals, of Multnomah county, state of Oregon, and E. S. Crane and W. E. Crane, sureties, of the same place aforesaid, by occupation millers, hereby undertake that the said S. W. Crane and Elizabeth Crane shall appear and answer the charge above mentioned, in whatever court it may be prosecuted, and shall at all times render himself amenable to the order and process of the court; and, if convicted, shall appear for judgment, and render themselves in execution thereof; or, if they fail to perform either of these conditions, that we will pay to the state of Oregon the sum of $1,000. "Witness our hands and seals this twenty-sixth day of October, A. D. 1883. "ELIZABETH CRANE. [Seal.] "S. W. CRANE. [Seal. Seal. [Seal.1 The case herein was an action to recover the penalty mentioned in said undertaking. It was tried by the said circuit court without a jury. Said court found for the respondent, and the judgment appealed from was entered thereon. The question made here is whether the facts found by the circuit court are sufficient to sustain the conclusions of law. The following are said facts: "(1) It is not true that on May 14, 1884, as alleged in the complaint, the undertaking upon which this action is based was by the circuit court of Douglas county declared forfeited or ordered prosecuted, but it is true that neither S. W. Crane nor Elizabeth Crane appeared in person at said time; (2) that on May 20, 1884, the contempt proceeding against S. W. and Elizabeth Crane, mentioned in the complaint in this action, came on for trial, when said parties appeared by counsel, and said cause was tried, and said S. W. and Elizabeth Crane were each adjudged guilty of contempt, and each fined one hundred dollars, and be committed to jail one day for every two dollars of such fine or until said fine be paid, and it was further ordered and adjudged that the undertaking set out in the complaint in this action be, and the same was at said time, declared forfeited and ordered prosecuted; (3) that neither said S. W. Crane nor Elizabeth Crane were present at said trial, or at any time during the term of court at which said cause was tried and said judgment entered, nor did either of said parties appear for judgment, or render themselves in execution thereof; (4) that said S. W. Crane and Elizabeth Crane both having failed and neglected to pay said fine, or render themselves in judgment therefor, on June 25, 1884, a commitment was duly issued on the judgment mentioned in finding No. 2, and said S. W. Crane was arrested by the sheriff of Douglas county, and placed in jail as directed in said judgment; (5) that the appeal from the judgment mentioned in finding No. 2 was not taken until after said S. W. Crane was arrested by the sheriff of Douglas county, as mentioned in finding No. 4." The findings do not set out the facts alleged in the pleadings. By reference to the answers it will be seen that an appeal was taken to this court by the said S. W. and Elizabeth Crane from the judgment referred to, and said finding No. 2, where the same was affirmed, the case remanded to the circuit court, and the judgment paid off, together with the costs of the appeal, which facts seem to have been conceded upon the trial hereof. The only question that need be considered by this court is the extent of the liability the undertaking imposed upon the parties executing it; whether, after S. W. and Elizabeth Crane had been adjudged to pay the fine, and they had paid it, an action could be maintained against them to recover the $1,000 specified in the undertaking; whether the circuit court could legally declare the undertaking forfeited after an appearance of the parties, and submission to its jurisdiction, in the proceedings in contempt. It will be seen, by a reference to the statute upon this subject, that the undertaking is not in strict accordance with the terms prescribed therein. Section 647, Civil Code, provides that "the defendant shall be discharged from the arrest upon executing and delivering to the sheriff, at any time before the return-day of the warrant, an undertaking, etc., to the effect that the defendant will appear on such return-day, and abide the order or judgment of the court or officer thereupon, or pay, as may be directed, the sum specified in the warrant." This provision is the authority of the sheriff for requiring or accepting an undertaking, and he has no right to exact from the defendant, in such case, any other form of security for his appearance than that which it prescribes; and, whatever the terms may be in an undertaking so given, its legal effect, if any is to be given to it whatever, must be determined in accordance with the provisions of said section of the Code. The previous section of the Code (section 646) provides that the court or judicial officer before whom the proceedings for contempt are had, shall direct in the warrant of arrest whether the person charged may be let to bail for his appearance, and, if he may be bailed, the amount in which he may be let to bail; and the conditions of the undertaking provided for in section 647 seem to be in the alternate,that the defendant will appear and abide the order or judgment of the court, etc., or pay, as may be directed, the sum specified in the warrant. It differs materially from a recognizance. In the latter the recognizor acknowledges himself indebted in a sum of money to be paid, etc., if he failed to do some act. In order to discharge himself from the debt, he must do the act. While in the former case the party obligated undertakes that he will do one of two things, he will either appear and abide the order of the court, etc., or he will pay the amount in which he is admitted to bail, as may be directed in the warrant of arrest. The supreme court of the Seventh judicial district of the state of New York, in the case of Barton v. Butts, 32 How. Pr. 456, held that, where a party was arrested upon an attachment for contempt, and had given a bond with sureties for his appearance at court, to abide the order of the court, and had been adjudged to have been guilty of the misconduct alleged, and punishment by fine and imprisonment ordered, the statute did not authorize the bond to be prosecuted at the same time that a warrant of commitment was issued against the party; that it was not the policy of the statute to give the aggrieved party two final and complete remedies for the same offense. I am inclined to the opinion that the same construction should be given the statute in question; that a party charged with being guilty of a contempt, and having executed an undertaking that he will appear and answer to it, cannot be tried for contempt, and be prosecuted upon the undertaking at the same time; nor after having been punished for contempt. I do not see how the said circuit court could have determined that said S. W. Crane and Elizabeth Crane did not appear and abide the judgment of the court in the said proceeding, or failed to pay the fine. They were tried, found guilty, and fined, and paid the fine. They did not appear in person, but appeared sufficiently to give jurisdiction to the court to punish them, and I should think that would be about as much of an appearance as necessary. The warrant was irregular in not requiring them to appear at a specified day. Such a writ should have a return-day. I judge this had none from the language of the undertaking, and draw my conclusions from that. There is a feature in the case which tends to prejudice the appellants. The parties, S. W. and Elizabeth Crane, disobeyed an injunction issued out of the court, and they should have been punished severely for that, and I apprehend that they have not been. Section 650, Civil Code, provides, for giving judgment in such a case, that the party aggrieved recover of the defendant a sum of money sufficient to indemnify him. I do not see why, under this section, a recovery was not allowed in favor of Knott for the $730, and interest thereon, when the fine was imposed. The court had the same authority to allow that it did to adjudge the fine; but this was a matter for the circuit court, and there probably was a good reason for not giving such judgment. Because it was not done, or a larger fine imposed, is no reason, however, for giving the statute a different construction than that indicated. It must have the same interpretation in this case as in any other; and the view I take of it is that there was no liability upon the undertaking after the proceeding was had in the matter of contempt. The judgment appealed from must therefore be reversed; the case remanded to the circuit court, with directions to dismiss the complaint. (9 Colo. 594) FIRST NAT. BANK OF LEADVILLE v. LEPPEL and others. (Supreme Court of Colorado. March 25, 1887.) 1. APPEAL-REVIEW-EVIDENCE. An appellate court will not review the judgment appealed from on the evidence unless the bill of exceptions contains all the evidence. 2. BANKS AND BANKING-COLLECTIONS-PROMISSORY NOTE-FRAUD OF CREDITORS. A bank with which a note is deposited by the payee, for collection, cannot refuse to return the note, or its proceeds, to the depositor, on the ground that it was given to defraud creditors of a third person, unless the bank itself is one of those credit ors. 3. GARNISHMENT-PROMISSORY NOTE-BANKS-PRACTICE. To hold a bank with which a note is deposited, for collection, as garnishee, with respect to said note, a special notice is necessary, specifying the note in question as the property of a person other than the depositor. Error to district court, Lake county. The complainant alleges that on June 27, 1879, M. Leppel & Co. were a firm; that the First National Bank of Leadville was a corporation, both doing business in Leadville; that on June 27, 1879, plaintiffs deposited in defendant's bank, for collection, a promissory note, executed by F. W. Clark to Isidore Heller, and by him indorsed to M. Leppel & Co., which note was for the sum of $400, payable 30 days from date; that at and after the maturity of said note plaintiffs demanded from defendant said note, or the proceeds thereof, but defendant refused, and still refuses, to deliver said note or proceeds, and has converted the same to its own use. Prayer for judgment for $400, with interest at 10 per cent. per annum from maturity of note, and costs. The answer admits that the defendant is a corporation, as named in complaint; denies that plaintiffs on June 27, 1879, or at any other time, deposited with defendant, for collection, the note mentioned in complaint; denies that demand was ever made for said note or proceeds, or that defendant refused to deliver the same to plaintiffs, or the proceeds thereof: denies that defendant has converted said note or proceeds to its own use. For further answer defendant alleges that said note is not the property of plaintiffs, but avers said note is really the property of David Heller; that said note was payable to Isidore Heller as part pay for the sale of the Washburn lode claim; that David Heller owned the interest of said Washburn lode, for which this note was given, and caused the note to be given to Isidore Heller, his son, for the purpose of defrauding the creditors of said David Heller; that M. Leppel knew well this fraud at the time of and before the assignment of this note; that a case is now pending in the district court for the Fourth judicial district, where John W. Zollars is plaintiff, and David Heller and others are defendants; and, among other things, this case seeks to subject this note to the payment of a debt due by David Heller to John W. Zollars. Defendant asks judgment for its costs. The amended answer alleges all the matters set up in answer, and also that note was tendered to plaintiffs; that plaintiffs were parties to, and cognizant of, the fraud alleged to have been committed by the Hellers; that defendant had been garnished and commanded to hold said note, or proceeds thereof, to satisfy any judgment which may be given in a case pending in said district court, wherein John W. Zollars is plaintiff, and David Heller and Cohn are defendants; that Clark, the maker of said note, was insolvent, and said note is therefore valueless. Trial to the court. Judgment for plaintiffs for $516 and costs. Writ of error to the supreme court. Markham, Patterson & Thomas and J. F. Fruenuff, for plaintiff in error. Harmon & Cover, for defendants in error. ELBERT, J. It does not appear that the bill of exceptions in this case contains all the evidence that was admitted on the trial in the court below. We cannot, therefore, review the judgment on the evidence. It is proper for us to say, however, that, from the evidence before us, there does not appear to have been much merit in the defense interposed by the defendant corporation. If the note in question was made payable to Isidore Heller, and indorsed by him to the plaintiffs, with intent to defraud the creditors of David Heller, as alleged, it did not concern the defendant corporation, unless it was a creditor of David Heller. Nor does it appear that the defendant corporation was in anywise charged with liability in respect of the note in question by the garnishee proceedings in the case of Zollars v. David Heller and others. The note was executed by Clark to Isidore Heller, and by him assigned to the plaintiffs, who deposited it with the defendant for collection. David Heller, the defendant in the attachment suit, had no apparent connection with, or ownership of, it. Under these circumstances, if the note was in fact the property of David Heller, and if it could be reached at all by garnishment, in order to charge the defendant, a special notice was requisite, specifying the note in question as the property of David Heller, the defendant in the attachment suit. The general notice of garnishment required by the statute (and none other appears to have been served) would not require the garnishee to hold the property of third persons as subject to the levy. It does not appear that the proceedings against the defendant corporation as garnishee were ever pursued to judgment. The judgment of the court below is atfirmed. (36 Kan. 572) FOSTER and others v. VOIGTLANDER. (Supreme Court of Kansas. May 6, 1887.) 1. APPEAL-REVIEW ON-RECORD-REPORT OF REFEREE. Where the issues of an action were referred, and a trial had and report made by a referee, to whose rulings and report no exceptions were taken, and where the |