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Where the state had the absolute title to tide land, and conveyed it to a supposed upland owner upon false representations, the proper remedy by the real upland owner entitled thereto is to have the state commence an action for the purpose of vacating the patent or deed executed to the supposed upland owner, as here provided, and, when a judgment has been obtained annulling it, make application for the purchase of the

land: Wilson v. Welsh, 12 Or. 361, 7 Pac. 341; Wilson v. Shively, 10 Or. 273; but when the matter in dispute is between private parties, and an adequate remedy is provided, the state can not lend the power of its name, or assume the cause of one against the other, for the purpose of settling rights or titles between them: Wilson v. Shively, 10 Or. 274.

§ 369. Who to Prosecute; Relator must Verify Pleadings; Leave to Begin Action.

The actions provided for in this chapter shall be commenced and prosecuted by the prosecuting attorney of the district where the same are triable. When the action is upon the relation of a private party, as allowed in section 367, the pleadings on behalf of the state shall be verified by such relator as if he were the plaintiff in the action, or otherwise as provided in section. 82; in all other cases such pleadings shall be verified by the prosecuting attorney in like manner or otherwise as provided in such section. When an action can only be commenced by leave, as provided in section 366, such leave shall be granted when it appears by affidavit that the acts or omissions in such section specified have been done or suffered by such corporation. When an action is commenced on the information of a private person, as allowed in section 367, having an interest in the question, such party, for all the purposes of the action, and as to the effect of any judgment that may be given therein, shall be deemed a coplaintiff with the state. [L. 1862; D. Cd. § 356; H. C. § 359.]

See note to § 367.

§ 370. Duty of Prosecuting Attorney when Directed by Governor to Begin Action.

When directed by the governor, as prescribed in section 365, it shall be the duty of the prosecuting attorney to commence the action therein provided for accordingly. In all other actions provided for in this chapter it shall be the duty of the proper prosecuting attorney to commence such action, upon leave given where leave is required, in every case of public interest, whenever he has reason to believe that a cause of action exists and can be proven, and also for like reasons in every case of private interest only in which satisfactory security is given to the state to indemnify it against the costs and expenses that may be incurred thereby. [L. 1862; D. Cd. $357; H. C. § 360.]

$371. Relator's Right May be Pleaded and Determined.

Whenever an action is brought against a person for any of the causes specified in subdivision 1 of section 367, the prosecuting attorney, in addition to the statement of the cause of action, may also separately set forth in the complaint the name of the person rightfully entitled to the office or franchise, with a statement of the facts constituting his right thereto. In such case,

judgment may be given upon the right of the defendant, and also upon the right of the person, so alleged to be entitled, or only upon the right of the defendant, as justice may require. [L. 1862; D. Cd. § 358; H. C. § 361.]

§ 372. Judgment in Favor of Relator, Effect of.

If judgment be given upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled to the possession and enjoyment of such franchise, or to take upon himself the execution of such office, after qualifying himself therefor as required by law, and to demand and receive the possession of all the books, papers, and property of whatever nature belonging thereto. [L. 1862; D. Cd. § 359; H. C. § 362.]

§ 373. Relator May have Action for Damages.

If judgment be given upon the right and in favor of the person so alleged to be entitled, he may afterwards maintain an action to recover the damages which he may have sustained by reason of the premises. In such action the defendant may be arrested and held to bail in the same manner and with like effect as in other actions at law where the defendant is subject to arrest. [L. 1862; D. Cd. § 360; H. C. § 363.]

§ 374. Several Persons Claiming Office or Franchise May be Joined as Defendants.

Several persons may be joined as defendants in an action for the causes specified in subdivision 1 of section 367, and in such action their respective rights to such office or franchise may be determined. [L. 1862; D. Cd. § 361; H. C. § 364.]

§ 375. Judgment Against Usurper May Include Fine.

When a defendant, whether a natural person or a corporation, against whom an action has been commenced for any of the causes specified in subdivision 1 of section 367, is determined to be guilty of usurping, or intruding into, or unlawfully holding or exercising any office or franchise, judgment shall be given that such defendant be excluded therefrom. The court may also in its discretion impose a fine upon the defendant not exceeding two thousand dollars. [L. 1862; D. Cd. § 362; H. C. § 365.]

§ 376. Judgment of Exclusion and Dissolution Against Corporation.

If it be determined that a corporation, against which an action has been commenced pursuant to this chapter, has forfeited its corporate rights, privileges, and franchises, judgment shall be given that such corporation be excluded therefrom, and that the corporation be dissolved. [L. 1862; D. Cd. § 363; H. C. § 366.]

§ 377. Copy of Judgment Roll to be Filed.

If judgment be given against a corporation, the effect of which is that

such corporation ceases to exist, or whereby any letters patent are determined to be vacated or annulled, it shall be the duty of the prosecuting attorney to cause a copy of the judgment roll to be filed in the office of the secretary of state. [L. 1862; D. Cd. § 364; H. C. § 367.]

§ 378. How Judgment Enforced.

A judgment given in any action provided for in this chapter, in respect to costs and disbursements, may be enforced by execution as a judgment which requires the payment of money, and in all other respects obedience thereto may be enforced by attachment of the body of the defendant, or if the defendant be a corporation, the body of any or all of the officers or members of such corporation refusing or neglecting obedience thereto. [L. 1862; D. Cd. § 364a; H. C. § 368.]



$379. What Causes of Action do Not Survive.

A cause of action arising out of an injury to the person dies with the person of either party, except as provided in section 381; but the provisions of this chapter shall not be construed so as to abate the action mentioned in section 39, or to defeat or prejudice the right of action given by section 34. [L. 1862 ; D. Cd. § 365 ; H. C. § 369.]

See notes to following sections.

$380. What Causes of Action do Survive.

All other causes of action, by one person against another, whether arising on contract or otherwise, survive to the personal representatives of the former and against the personal representatives of the latter. When the cause of action survives as herein provided, the executors or administrators may maintain an action at law thereon against the party against whom the cause of action accrued, or after his death against his personal representatives. [L. 1862 ; D. Cd. § 366 ; H. C. § 370.]

The survival of actions in the United States courts depends upon the state law: Barker v. Ladd, 3 Saw. 44.

See $38, ante, for proceedings upon the death of a party during the pendency of an action.

Executors may sue either individually or

in their representative capacity, at their option, on causes of action, whether in contract or tort, accruing after the death of the intestate or testator, hence the complaint need not show in such cases for whose estate they are executors: Burrell v. Kern, 34 Or. 502, 56 Pac. 809.

§ 381. Death From Injury, When Representatives May Sue for Limitations. When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an

action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not exceed five thousand dollars, and the amount recovered, if any, shall be administered as other personal property of the deceased person. [L. 1862; D. Cd. § 367; H. C. § 371.]

The above section is derived from the act of parliament, 9 and 10 Vict. C. 93, known as Lord Campbell's act. Where the death results from injuries occasioned by a vessel engaged in navigating the waters of the United States, the representatives of the deceased have a right of action in admiralty to enforce the lien created by § 5706. This right is not a continuance or survival of the right the deceased would have had for the injuries received by him had he lived, but is a new right, based on different principles: Seward v. Vera Cruz, 10 App. Cas. 59, 73; Pym v. Railway Co. 4 B. & S. 403; see "The Oregon," 73 Fed. 849; citing "The Corsair," 145 U. S. 335. The time prescribed in the statute within which the action must be brought operates as a limitation of the liability itself as created and not of the remedy alone: "The Harrisburg," 119 U. S. 199.

See 34, ante, as to actions by parent and guardian for injury or death of child or


By § 34 a parent, during the continuance of the relation of parent and child, may maintain an action in his or her own right for damages caused by the death of the child, while this section gives to the personal representative a right to recover for any injury which the estate may have sustained by reason of the death of an adult or one emancipated from parental service: Putnam v. Southern Pac. Co. 21 Or. 230, 27 Pac. 1033; Craft v. Northern Pac. R. Co. 25 Or. 285, 35 Pac. 250.

By force of this section the personal representatives in the prosecution of an action and the distribution of the proceeds represent collectively all who are interested in the continuance of the life, whether as creditors, heirs, or distributees. The heirs and distributees have no interest in the recovery by right of action for a pecuniary injury sustained by them, but only by virtue of kinship, and if the expenses of the administration and debts of the deceased equal or exceed the assets of the estate which include the damages recovered, the next of kin get no benefit from the right of action: Carlson v. Oregon S. L. Ry. Co. 21 Or. 459, 28 Pac. 497.

The right of action here conferred is an entirely new one, and is based on the death of the injured person, not on the injury that caused it, so the right of action exists

though the decedent may have been instantly killed: Perham v. Portland Elec. Co. 33 Or. 458, 54 Pac. 14, 72 Am. St. Rep. 730.

The fact that there are no surviving relatives or creditors of a person to whom to distribute the amount recovered, does not preclude a right of action by the personal representatives: Perham v. Portland Elec. Co. 33 Or. 466, 54 Pac. 14, 72 Am. St. Rep. 730.

Five thousand dollars is the utmost sum that can be in controversy in an action under this section: Holmes v. Oregon & Cal. R. Co. 9 Fed. 246.


Whenever the injury causing the death occurred upon navigable waters, a court of admiralty has jurisdiction and may entertain a suit by the representatives as authorized by this section: Holmes v. Oregon & Cal. R. Co. 5 Fed. 80; The Clatsop Chief, 8 Fed. 167. By reason of the state "boat lien law" such a suit may be in rem: Oregon, 57 Fed. 846, 45 Fed. 77. After the release of a vessel upon a stipulation other than a stipulation for the value of the vessel, in order to enforce such a lien the vessel must be rearrested: The Oregon, 158 U. S. 211; and if such proceedings as amount to commencement of a suit are not had within two years the cause is barred: The Oregon, 73 Fed. 851.

MEASURE OF DAMAGES is the pecuniary loss suffered by the estate of the deceased, without any solatium for the grief or anguish of the surviving relatives, or pain or suffering of the deceased, and that loss is the probable amount of what he would save from his earnings during the residue of his life in his business or profession. taking into consideration his age, ability, and disposition to labor; and his habits of living and expenditure: Carlson v. Oregon S. L. Ry. Co. 21 Or. 456, 28 Pac. 497; Holmes v. Oregon & Cal. R. Co. 5 Fed. 75 and 542; Holland v. Brown, 35 Fed. 48; Ladd v. Foster, 31 Fed. 832.

Exemplary damages ought not be given: Holmes v. Öregon & Cal. R. Co. 5 Fed. 562. No allowance can be made for sickness and burial expenses: Holland v. Brown, 35 Fed. 49.

Insurance recovered can not be set-off against a claim for damages under the statute: Ladd v. Foster, 31 Fed. 833.

§ 382. Several Representatives Regarded as One Person.

In an action against several executors or administrators, they shall all be considered as one person representing their testator or intestate, and judgment may be given and execution issued against all of them who are defendants in the action, although the summons be served only on part of them in the same manner and with like effect as if served on all, except as provided in the next section. [L. 1862; D. Cd. § 368; H. C. § 372.]

$ 383. Judgment on Failure to Answer, as Evidence of Assets.

When a judgment is given against an executor or administrator for want

of answer, such judgment is not to be deemed evidence of assets in his hands, unless it appear that the complaint alleged assets, and that the summons was served upon him. [L. 1862; D. Cd. § 369; H. C. § 373.]

§ 384. Inventory as Evidence May be Contradicted.

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In an action against executors or administrators, in which the fact of their having administered the estate of their testator or intestate, or any part thereof, is put in issue, and the inventory of the property of the deceased returned by them is given in evidence, the same may be contradicted or avoided by evidence,

1. That any property has been omitted in such inventory, or was not returned therein at its full value, or that since the return thereof such propcrty has increased in value;

2. That such property has perished or been lost, without the fault of such executors or administrators; or that it has been fairly and duly sold by them at a less price than the value so returned; or that, since the return of the inventory, such property has deteriorated in value. In such action the defendant can not be charged for any things in action, specified in their inventory, unless it appear that they have been collected, or with due diligence might have been. [L. 1862; D. Cd. § 370; H. C. § 374.]

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No person is liable to an action as executor of his own wrong for having taken, received, or interfered with the property of a deceased person; but is responsible to the executors or administrators of such deceased person, for the value of all property so taken or received, and for all injury caused by his interference with the estate of the deceased. [L. 1862; D. Cd. § 371; H. C. § 375.]

The effect of this section is to abolish the common-law rule making one who wrongfully interfered with the estate of a deceased person an executor de son tort, and takes away the remedy which a creditor had to charge the intermeddler as such. His remedy now is to procure the appointment of an administrator, and have a proceeding instituted in the name of the latter to recover the property misappropriated:

§ 386.

Executor of Executor.

Rutherford v. Thompson, 14 Or. 239, 12
Pac. 382.

The payment of claims against an estate by one who assumes to act as administrator thereof under an appointment void for want of jurisdiction in the court making the appointment, will not constitute a defense to an action by the rightful administrator for conversion of the property of the estate: Oh Chow v. Brockway, 21 Or. 448, 28 Pac. 384.

An executor of an executor has no authority as such to commence or maintain an action or proceeding relating to the estate of the testator of the first executor, or to take any charge or control thereof. [L. 1862; D. Cd. § 372; H. C. § 376.]

§ 387. Action Against Representatives When Commenced.

An action may be commenced against an executor or administrator at any time after the expiration of six months from the granting of letters

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