are of the opinion that the plaintiffs did not, I sons are not allowed to enter into contracts and never intended to, release either of the which will oust the courts of their jurisdefendants. The testimony of the plaintiff diction over the subject-matter of such conJoseph G. Houston would indicate that he tracts. Yet the authorities recognize the is somewhat of a Shylock, but it also tends right of such persons to arbitrate incidental to show that he relied upon and expected to or collateral questions of fact which do not enforce the terms and conditions of his lease go to the essence of the contract and which until such time as he received the purchase are only intended as an aid and guide to the price of, and parted with his title to, the courts in any litigation arising out of the property. contract for the purpose of settling in advance some particular fact or facts so as to furnish evidence of it at the trial which the litigants are not at liberty to dispute. [2, 3] Notwithstanding the assignment, Barnett as lessee continued liable on the covenants in the lease to pay rent and taxes which accrued subsequent to the assignment. After the transfer, the assignee then became liable to the lessors for the rental and taxes, and the lessors at their election could then sue either the lessee or the assignee, or both at the same time, although they could have but one satisfaction. It is well settled that the assignee of a leasehold is personally liable for rent accruing while he retains the leasehold. 16 R. C. L. § 352, and authorities there cited. The distinction between executory agreements of arbitration which oust the courts of jurisdiction, and those which are sustained as the sole remedy between the parties, is carefully drawn and fully discussed in Delaware & H. Co. v. Pennsylvania Coal Co., 50 N. Y. 250, which is the leading case on that question. "But the better rule seems to be that a court of equity will secure to either party the benefit of such clauses in a lease, and that, even in the face of the rule against the specific performance of an agreement to submit to arbitration, when the arbitration has failed the court may make the appraisement itself or direct it to be done by its own officer and thereafter enforce performance of the contract upon the terms so found." 24 Cyc. p. 1006, and authorities cited. Under facts similar to those in the case at bar, the same rule is announced in Kaufmann v. Liggett, 209 Pa. 87, 58 Atl. 129, 67 L. R. A. 353, 103 Am. St. Rep. 988, in which the court says, on page 999 of the opinion in the lastnamed report, on page 102 of 209 Pa., on page 134 of 58 Atl.: "The court has complete jurisdiction in equity to fix the amount of the rental to be paid by the lessees during the extension of five years from April 1, 1903, and to enforce specific performance of the agreement providing for such extension." The defendants contend that a court of equity does not have jurisdiction of this controversy and claim that they were released from all liability. Clause 5 of the lease specifically provides for a minimum rent of $1,200 per annum for the last five year period, that upon the failure to agree as to any increase of such rent arbitrators should be appointed, and that the findings of the majority thereof should be binding. Clause 6 stipulates how any increase in the purchase price for the same period should be determined. Clause 11 provides that upon the failure of either party to appoint an arbitrator, under clause 5 or 6, the other party "may apply to the circuit court of the state of Oregon for the county of Multnomah and secure the appointment of an arbitrator to represent the party so refusing, [4] The arbitration clauses in the lease beand such appointment shall be final and bind-fore us were not of the essence of the coning." While such clauses define the minimum amount of the rent and purchase price, yet any increase of either was to be determined by arbitration. When the defendants denied further liability, it must follow that they thereby refused and neglected to comply with the terms and provisions of either clause 5, 6, or 11 of the lease; and, to protect and define their rights, the plaintiffs were then obliged to apply to the court to obtain the specific performance of that portion of the contract which provided for the appointment of arbitrators to determine the amount of the increase, if any, in the annual rent and the purchase price for the last five years of the lease. Denying liability, the defendants have no right to complain that the plaintiffs asked the court to do that which the contract specifically provided should be done. According to the notes appended to the report of the case of Williams et al. v. Branning Mfg. Co. in 47 L. R. A. (N. S.) 337, 380 (154 N. C. 205, 70 S. E. The tract, but mere incidents or collaterals which Elrod claims that he assigned the lease to Beeman and by reason thereof is released from any further liability after the date of AND CONSTABLES 113(1) CONVERSION-LIABILITY OF SHERIFF. the assignment was not made in good faith | levy was made in good faith, and although and that it was in fact a fraud for the sole property was not actually taken or removed. purpose of relieving Elrod from further 4. SHERIFFS liability. As the facts appear of record, this question becomes immaterial. The lease was executed on March 29, 1906, and the assignment to Beeman was made on or about June 1, 1916. By the terms of the lease the rental was to be paid in advance; hence on March 29, 1916, another $1,200 as accrued rental became due and payable. The decree of the lower court was for three years' rent, unpaid taxes, and accrued interest, amounting to $4,608. Under the terms and provisions of the contract, the lessee promised and agreed to pay the stipulated rental, and by virtue of his assignment Elrod became in privity with and liable for the amount of such rental and would continue to be liable so long as he held under his assignment, and under the terms of the lease a full year's rental was due and payable in advance on March 29th of each year. For such reason it is unnecessary to decide in this opinion as to the validity or the force and effect of the assignment from Elrod to Beeman. It is also claimed that Beeman was a necessary party to the suit. The arbitrators were appointed by the court upon the application of the plaintiffs, and they found that the plaintiffs were not entitled to any increase of rent or the stipulated amount of the purchase price. If the assignment was valid and the arbitrators had increased either the rental or purchase price, there might be some merit in the contention that Beeman was a necessary party; but, under the findings of the arbitrators, if the assignment was valid the plaintiffs could collect only the minimum amount of the rent stipuIlated in the lease. After careful consideration, we are of the opinion that the decree of the circuit court must be affirmed. A sheriff, who levied execution upon property that had passed from defendant named in writ into the hands of his assignee for benefit of creditors, was liable for conversion of such property, although he had not removed it, and had placed it in the hands of a third party, from whom he had taken receipt. Wasco County; W. L. Bradshaw, Judge. Department 2. Appeal from Circuit Court, Action by R. L. Sabin against Levi Chrisman, Sheriff of Wasco County, and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with direc tions. This is an action of damages for a conversion. The cause was tried by the court without a jury, resulting in the findings of fact and conclusions of law and a judgment in favor of defendants. Plaintiff appeals. The facts necessary to an understanding of the case are as follows: On the 15th day of August, 1914, P. Perlman, who was the owner of a stock of merchandise, including the stoves and ranges involved in this action, transferred the same by deed of assignment to R. L. Sabin, plaintiff, for the benefit of his creditors pro rata. The possession of the property was taken by Mr. Sabin, through his agent, Mr. J. M. Foster, on the following day. The validity of this transaction was passed upon and approved by this court in the case of Sabin v. Chrisman et al., 79 Or. 191, 154 Pac. 908. On August 19, 1914, defendant Levi Chrisman, sheriff of Wasco county, Or., accompanied by the attorney for the Portland Association of Credit Men, the other defendant herein, proceeded to the store at The Dalles, Or., being then armed with an execution on a judgment in favor of the Portland Association of Credit Men and against P. Perlman, the former owner of the store. They MCBRIDE, C. J., and BEAN and BENSON, found in the store one J. S. Fine, who was JJ., concur. then employed as a clerk by J. M. Foster, the agent of R. L. Sabin. The sheriff was informed of the assignment, and that Mr. Foster was in charge for the assignee. Mr. Foster, who had stepped out for a few moments, returned to the store and protested against the levy. The sheriff then proceeded to levy upon the entire stock in the store, but was induced to levy upon a portion of the goods only; Mr. Foster protesting. The sheriff designated seven cooking ranges, which were in the store already segregated, and placed them in charge of Mr. J. S. Fine, whom he knew and had confidence in, to hold for the sheriff, and took a receipt from Mr. Fine, which is as follows: "The Dalles, Oregon, August 19, 1914. "Received from Levi Chrisman, sheriff of Wasco county, Oregon, seven steel cooking ranges, levied upon under execution in case of Portland Association of Credit Men v. P. Perlman. "J. S. Fine, Mgr." The ranges were not removed by the sheriff, nor by the plaintiff or his agents, but remained continuously in the care of J. S. Fine until August 29th, when they were destroyed by fire, together with other property. The loss was not occasioned by any fault of the sheriff or the other defendant, nor of the plaintiff or his agents. The sheriff did not leave with J. M. Foster or J. S. Fine either a copy of the execution or notice specifying the property levied upon. The defendant sheriff testified in regard to the levy that: "He [Foster] came back and said the stock was in their hands, and wanted to know if I could not levy on sufficient property to cover the execution without locking the store up; and I told them I would, and I took possession of a number of ranges. Q. Just tell what you did, Mr. Chrisman. * *A. The receipt shows for itself; that is what I did" * -and stated to the effect that Fine was holding the property in question for him as the receipt showed. It is admitted that at the time of the alleged levy the personalty in question was of the value of $225.50, and that Sabin was the owner and entitled to the possession of the property. The trial court made findings of fact to the purport as above stated, and found as conclusions of law: That the acts of the sheriff, Levi Chrisman, as hereinbefore set forth, did not constitute a levy, and did not operate to dispossess the plaintiff, R. L. Sabin, or his agents, of said goods and chattels, and: "That the acts of said Levi Chrisman and Portland Association of Credit Men, or either of them, as hereinbefore set forth, did not constitute a conversion; that the defendants are not liable to the plaintiff in any sum whatsoever, and said action should be dismissed." A judgment was rendered accordingly. Sidney Teiser, of Portland (Teiser & Smith, of Portland, on the brief), for appellant. Maurice W. Seitz, of Portland, for appellees. dereliction on the part of defendants does not furnish ground for any liability against either of them. As we understand it, it is not a question as to whether or not the levy of the execution on the judgment against Perlman by the defendant sheriff created a lien on the property. In order for the levy to have had such an effect, the property must have belonged to Perlman. The question for determination here is: Did the sheriff and the plaintiff in the writ commit a trespass on Sabin's property by wrongfully interfering therewith, in a manner subversive of the rights of plaintiff, who was the owner of the personal property, to his injury? 38 Cyc. 2005, it is said: In Under no other rule can a person be protected in his right to property. In Budd v. Multnomah Street Ry. Co., 12 Or. 271, 7 Pac. 99, 53 Am. Rep. 355, the court said: "The wrong lies in the interference with the owner's right to do as he will with his own. Whoever does this in any manner subversive of the owner's right to enjoy or control what is his own is guilty of a conversion." See, also, 2 Cooley on Torts (3d Ed.) p. 859; Ramsby v. Beezley, 11 Or. 49, 51, 8 Pac. 288; Madden v. Condon National Bank, 76 Or. 363, 149 Pac. 80; Gregory v. Oregon Fruit Juice Co., 84 Or. 199, 202, 164 Pac. 728; Velsian v. Lewis, 15 Or. 539, 16 Pac. 631, 3 Am. St. Rep. 184; Scott v. Perkins, 28 Me. 22, 48 Am. Dec. 470; note to Bolling v. Kirby (Ala.) 24 Am. St. Rep. 789; Wintringham v. Lafoy, 7 Cow. (N. Y.) 735; Connah v. Hale, 23 Wend. (N. Y.) 462; Phillips v. Hall, 8 Wend. (N. Y.) 610, 24 Am. Dec. 108; Allen v. Crary, 10 Wend. (N. Y.) 349, 25 Am. Dec. 566; Fonda v. Van Horne, 15 Wend. (N. Y.) 631, 30 Am. Dec. 77. [1, 2] An officer making a levy of an execution may at his own risk deliver property levied upon to a bailee and take a receipt thereof. The goods are regarded as still in the officer's control. 4 Cyc. 661-663; 2 Freeman on Executions, § 262; Paliner-Haworth Logging Co. v. Henderson, 174 Pac. 531. Where an officer levies a writ of execution on the property of a stranger, the plaintiff in the writ is liable to the owner and person BEAN, J. (after stating the facts as above). Plaintiff takes the position that, in view of the fact that the property was not the property of the judgment debtor (citing Sabin v. Chrisman et al., supra), the sheriff's taking possession of and assumption of control over the ranges, and his interference with plaintiff's dominion over the property, constituted a conversion; and, as the property had never been returned to him by the sheriff or the other defendant, he was entitled to damages to the extent of the value of the property, notwithstanding the same had been destroyed by fire. The defendants contended: First, that the acts of the sheriff did not constitute a valid levy, or give the sheriff any jurisdiction over the property, | having the right of possession thereof, when or change possession thereof; second, that, even if the acts of the sheriff could be called a levy, it was a mere paper levy, and insufficient to constitute a conversion; that, the goods having been left in the actual possession of the agents of plaintiff, their sub he directed the wrongful levy; and such owner has a right of action at once, either for the reclamation of the property, or to recover damages, it not being material that the property was sold or destroyed subsequently to the wrongful levy. 4 Cyc. 762, Torts (3d Ed.) p. 895. In Crocker on Sheriffs tels in the hands of a third person is a tres(3d Ed.) § 436, it is said: "It may be said, however, generally, that there can be no valid levy upon personal property, under an execution as against any other party than the judgment debtor, unless such property is present and subject to the disposition and control of the officer seeking to make the levy, and unless he takes possession of it, or exercises such dominion over it as will render him a trespasser, if the process under which he acts is not a protection to him. But to constitute a valid levy, or to make the officer a trespasser in such case, it is not necessary that he should take actual possession of, or touch or manually interfere with, the property. It is sufficient in either case, if the property is present, that he claims to exercise control over it by virtue of his writ, or that he makes an inventory of it, or threatens to remove it, unless a receiptor is given. It is not necessary 串 that the officer should leave any person in possession of the property, nor that he should remove the same.' In 35 Cyc. 1671, it is stated: "Where the officer levies on the property of one person under process against another, and takes possession of the property, he is liable to the owner for the loss thereof, although such loss was not due to his fault [citing Duncan v. Stone, 45 Vt. 1181; but no such liability accrues where the officer did not take possession of the property levied on, and the loss was not attributable to his fault or to the making of the levy [citing Sammis v. Sly, 54 Ohio St. 511, 44 N. E. 508, 56 Am. St. Rep. 731]." [3] It is well settled that the good faith of an officer, or the innocence of his intent, do not relieve him of liability for levying on property which does not belong to defendant in the process under which he acts. 35 Cyc. | 1660; Meadow v. Wise, 41 Ark. 285; Ilg v. Burbank, 59 Ill. App. 291; Duperron v. Van Wickle, 4 Rob. (La.) 39, 39 Am. Dec. 509; Snyder v. Berger, 3 Sadler, 318, 6 Atl. 733; Campbell v. Ulch, 24 Tex. Civ. App. 618, 60 S. W. 272. The rule is stated in 35 Cyc. 1652: "Where a sheriff or constable, acting under a writ which specifies no particular property, to be levied on thereunder, levies on property belonging to a person other than defendant in the writ, he is liable to the owner of the property for the resulting damage; and the sheriff's liability for such a wrongful seizure is not dependent upon his selling the property." Sammis v. Sly, supra, relied upon by defendants, is a case where an attachment was levied on the property of a third person under the mistaken belief that it belonged to the defendant in the writ; but no such custody was taken of the property by the officer as deprived the owner of his control over it, and it was lost by fire before the commencement of a suit for the conversion. The court in that case took the precaution to state that: "If the property had been taken into the actual custody of the officer, and so as to deprive the owner of any control over it, a different rule of liability might apply." When an officer wrongfully exercises a right of dominion over personal property, he pass. 2 Freeman on Executions (3d Ed.) § 272; Spaulding v. Kennedy, 6 Or. 208; Lewis v. Birdsey, 19 Or. 164, 26 Pac. 623; Marks v. Shoup, 181 U. S. 562, 21 Sup. Ct. 724, 45 L. Ed. 1002; Connah v. Hale, 23 Wend. (N. Y.) 462, 466. The law seems to be more strictly construed against the plaintiff in the writ, or those claiming under the writ, as to what constitutes a sufficient taking possession under the writ, than against a third person, like Sabin, who complains of the taking of his property under a writ against the debtor, such as Perlman. In the latter case it is held that manual possession is not necessary to constitute the taking a trespass, if it be such as for the time is recognized as authoritative by the party dispossessed, as Sabin was in this case. It is sufficient to lay the foundation of an action against the officer, if he unlawfully exercised authority over the chattels, against the will and to the exclusion of the owner, although there was no actual taking of the property or removal. 1 Wade on Attachment, § 242; 2 Freeman on Executions (3d Ed.) § 260, p. 1453. [4] The findings of the trial court and the undisputed evidence show that the defendant Chrisman, pursuant to the direction of the other defendant, attempted to levy upon the property of the plaintiff under a writ of execution against the property of one Perlman. The property was then in the possession of plaintiff, by his agents, in a certain store building. The plaintiff was divested of the control of the cooking ranges, and the same were placed in charge of J. S. Fine, as bailee for the sheriff, in exclusion and defiance of plaintiff's right. The receipt taken by the sheriff shows that the personal property was levied upon under the execution, and that the same was received from the sheriff by Fine. It is clear that the sheriff had actual control of the goods by the assistance of the keeper, Fine. The acts of the sheriff constituted a wrongful exercise of dominion over plaintiff's property, and a denial of his right to the use and enjoyment of the same. It was not a mere paper levy. It amounted to a conversion of the property. The findings of the trial court do not support the judgment. It is not important whether the property was moved from one place to another, but whether the same was wrongfully taken from the control of the owner, Sabin. For aught that appears, had it not been for the attempted levy, the goods might have been sold, and not have been lost. The judgment of the lower court will be reversed, and the cause remanded, with directions to enter a judgment in favor of plaintiff against the defendants for $225.50, the value of the goods at the time of the levy. MCBRIDE, C. J., and JOHNS and OLSON, PER CURIAM. The plaintiff in error, Vincent Kerriel, was convicted of manslaugh ter in the first degree on an information charging that he did kill and murder one A. D. Cogburn, by shooting him with a shotgun, and was sentenced to imprisonment in the state penitentiary for the term of 15 years. He was also convicted of manslaughter in the first degree on an information charging that he did kill and murder N. J. Cogburn, by shooting him with a shotgun, and was sentenced to imprisonment in the state penitentiary for the term of 19 years. Appeal from Superior Court, Muskogee From the judgments he appealed, by filing in County; Guy F. Nelson, Judge. this court petitions in error with case-mades attached. J. C., alias Jack, Collins was convicted of a violation of the prohibitory law, and he ap-fore the final submission of the causes, sugSince said appeals were taken, and bepeals. Order that proceedings abate. Brown & Stewart, of Muskogee, for plaintiff in error. R. McMillan, Asst. Atty. Gen., and W. W. Cotton, Co. Atty., of Muskogee, for the State. PER CURIAM. The plaintiff in error was convicted of having possession of intoxicating liquor with intent to sell the same; the jury fixing the punishment at confinement in the county jail for six months and a fine of $500. From the judgment pronounced upon said conviction, an appeal was perfected by filing in this court on March 12, 1918, a petition in error with case-made. Counsel for the state have filed a motion to abate, supported with proof of the death of plaintiff in error, showing that the same occurred on June 24, 1918. It is therefore adjudged and ordered that all proceedings in this cause be abated, with direction to the superior court of Muskogee county to enter an order to that effect. (15 Okl. Cr. 142) KERRIEL v. STATE (two cases). (Nos. A-2970, A-2971.) (Criminal Court of Appeals of Oklahoma. Nov. 2, 1918.) (Syllabus by Editorial Staff.) CRIMINAL LAW 1070-PROCEEDINGS ON APPEAL-ABATEMENT-DEATH. After appeals from convictions, and upon the Attorney General's suggestion of appellant's death, it would be ordered that the proceedings abate, with direction to district court to enter its appropriate orders to that effect. Appeals from District Court, Coal County; J. H. Linebaugh, Judge. Vincent Kerriel was convicted of manslaughter in the first degree on two separate informations, and from the judgments he appeals. Ordered that proceedings in error abate, with direction. George Trice, of Coalgate, for plaintiff in error. The Attorney General and R. McMillan, Asst. Atty. Gen., for the State. gestion of the death of the plaintiff in error has been made by the Attorney General. It is therefore adjudged and ordered that the proceedings in these causes be abated, with direction to the district court of Coal county to enter its appropriate orders to that effect. While a verified complaint filed in the court of record may be sufficient to authorize the issuance of a warrant of arrest for the person accused, it is not sufficient as an accusation upon which a criminal trial may be based in courts of record. A plea of not guilty to a verified complaint in a court of record presents no issue for the court to try. 3. CRIMINAL LAW 261(2)-TRIAL-DEFECTIVE INFORMATION-JOINDER OF ISSUE. Where it is apparent from the record that, after the defendant has been arrested on a verified complaint in a court of record and has pleaded not guilty thereto, the county attorney subsequently files with the papers in the case an information charging the offense, without the knowledge of the defendant and without notice to him or his counsel that same had been filed and without any filing mark having been placed thereon, and without any plea having been entered by the defendant to said accusation, it is error for the trial court to proceed, over the objection and exception of the defendant, to try him upon such an accusation without any issue having been first lawfully joined. Appeal from County Court, Pawnee County; George E. Merritt, Judge. Ferd Morgan was convicted of maintaining a liquor nuisance, and he appeals. Reversed. McNeill & McNeill, of Pawnee, for plaintiff in error. S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State. 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