printed and published books of reports of decisions of the courts of such state or country, or proved to be commonly admitted in such courts. [L. 1862; D. Cd. § 717; H. C. $ 727.] The unwritten law of a foreign country must be shown by oral testimony of witnesses skilled therein, and the published reports of the decisions of such countries, and not by historical works: State v. Moy Looke, 7 Or. 54. 8 740. Recitals in Statutes as Evidence. There is no presumption that the laws of another state are like our own, and a person relying on such foreign law must allege and prove it: Balfour v. Davis, 14 Or. 47, 12 Pac. 89. The recitals in a public statute are conclusive evidence of the facts recited for the purpose of carrying it into effect, but no further. The recitals in a private statute are conclusive evidence of the facts recited between parties who claim under its provisions, but no further. [L. 1862; D. Cd. § 718; H. C. § 728.] § 741. Judicial Record Defined. A judicial record is the record, official entry, or files of the proceedings in a court of justice, or of the official act of a judicial officer, in an action, suit, or proceeding. [L. 1862; D. Cd. § 719; H. C. § 729.] § 742. Judicial Record of United States, Sister State, or this State, how Proved. A judicial record of this state or of the United States may be proved by the production of the original, or by a copy thereof, certified by the clerk or other person having the legal custody thereof, with the seal of the court affixed thereto, if there be a seal. That of a sister state may be proved by the production of a copy thereof, certified by the clerk or other person having the legal custody of the record, with the seal of the court affixed thereto, if there be a seal, together with the certificate of the chief judge, or presiding magistrate, that the certificate is in due form, and made by the clerk or other person having the legal custody of the original. [L. 1862; D. Cd. § 720; H. C. § 730.] The following are the requirements of the United States statutes on the proof of records: "The acts of the legislature of any state or territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of state, territory, or country affixed thereto. The records and judicial proceedings of the courts of any state or territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form; and the said records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken": U. S. Rev. Stat. § 905. "All records and exemplifications of books which may be kept in any public office of any state or territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other state or territory, or in such country, by the attestation of the keeper of said records or books, and the seal of his office annexed, if there be a seal. together with a certificate of the presiding justice of the court of the county, parish, or district in which such office may be kept, or of the governor or secretary of state, the chancellor, or keeper of the great seal of the state, or territory, or country. that the said attestation is in due form and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court. who shall certify under his hand the seal of his office, that the said presiding justice is duly commissioned and qualified; or if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the state, territory, or country aforesaid in which it was made; and the said records and exemplifications so autherticated shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the state, territory, or country, as aforesaid, from which they are taken": U. S. Rev. Stat. § 906. The existence of a judgment or execution can not be proven by parol, but only in the manner prescribed by this section: Bowick v. Miller, 21 Or. 27, 26 Pac. 861. Only that which was in issue is proven by the judicial record of the case: Hill v. Cooper, 6 Or. 189. Probate proceedings must all be taken in a county court, and may be proved by a certified copy of such proceedings: Jones v. Dove, 6 Or. 191. Parol evidence, however, is admissible to supplement the records of a county court as to proceedings when sitting for the transaction of county business, since the court is then acting only as the agent of the county, and in such cases the records do not constitute the only evidence of what was done: Stout v. Yamhill County, 31 Or. 319, 51 Pac. 442. In a prosecution for perjury, the cause and issue wherein the perjury was committed must be proved by the records, if any were made, and where the perjury is assigned to have been committed in the evidence given in the cause, it is still necessary to produce the record, but evidence of the state of the cause at the time the alleged false testimony was introduced, which will demonstrate its mate riality, may be given allunde: State v. A certified copy of a certified copy is not evidence, unless expressly made so by statute: Goddard v. Parker, 10 Or. 102. Where the judge's certificate to a transcript of a judgment from another state does not show that he is the sole judge, or the chief judge or presiding magistrate of the court in which it was rendered, such transcript is not thereby rendered inadmissible in evidence, unless it affirmatively appears from the record that such court was composed of more than one judge or magistrate: Keyes v. Mooney, 13 Or. 180, 9 Pac. 400. Where such Judge's certificate bears a date anterior to the date of the attestation by the clerk, but refers to the latter as then in existence, it will be presumed that the discrepancy is a clerical error, and should be disregarded: Keyes v. Mooney, supra. To render a foreign will effective to convey real estate in this state under the law as it existed prior to 1891, it must not only have been executed in the manner prescribed by the law of this state, but must also have been proved in the foreign jurisdiction in the manner required by the Oregon law, and this entire record must have been authenticated in the manner prescribed by this section: In re Clayson's Will, 24 Or. 543, 34 Pac. 358. § 743. Record of Foreign Country, how Proved. A judicial record of a foreign country may be proved by the production of a copy thereof, certified by the clerk, or other person having the legal custody of the record, with the seal of the court affixed thereto, if there be a seal, together with the certificate of the chief judge, or presiding magistrate, that the certificate is in due form, and made by the clerk or other person having the legal custody of the original, and also, together with the certificate of the secretary of state, or other officer of the government having the custody of the great or principal seal of such government, to the effect that the court or officer whose judicial act or proceeding is certified had jurisdiction to perform the same, specifying generally the nature of the jurisdiction, and verifying the signature of the clerk or other legal keeper of the record, and also the signature of the chief judge or presiding magistrate. [L. 1862; D. Cd. § 721; H. C. § 731.] § 744. Proof of Record of Foreign Country by Oral Evidence. A copy of the judicial record of a foreign country is also admissible in evidence upon proof, 1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of it; 2. That such original was in the custody of the clerk or other legal keeper of the same; and, 3. That the copy has affixed to it a seal, which is proved to be the seal of the court where the original record remains, or if there be no such seal, the signature of the legal keeper of the record. [L. 1862; D. Cd. § 722; H. C. § 732.] $ 745. What Judicial Orders are of Conclusive Effect. The effect of a judgment, decree, or final order in an action, suit, or proceeding before a court or judge thereof of this state or of the United States, having jurisdiction to pronounce the same, is as follows: 1. In case of a judgment, decree, or order against a specific thing, or in respect to the probate of a will or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment, decree, or order is conclusive upon the title to the thing, the will or administration, or the condition or relation of the person; 2. In other cases, the judgment, decree, or order is, in respect to the matter directly determined, conclusive between the parties and their representatives and successors in interest by title subsequent to the commencement of the action, suit, or proceeding, litigating for the same thing, under the same title, and in the same capacity. [L. 1862; D. Cd. § 723; H. C. § 733.] CONCLUSIVENESS OF JUDGMENTS AND DECREES, GENERALLY.-Judgments and decrees are conclusive as to what was actually litigated: Bell v. Brown, 37 Or. 592, 61 Pac. 1024; Hall v. Zeller, 17 Or. 381, 21 Pac. 192; Dowell v. Applegate, 24 Or. 440, 33 Pac. 937; Finley v. House, 22 Or. 562, 30 Pac. 494. It is conclusive also as to what might properly have been litigated in the proceedings, unless the failure to urge the point in question was caused by the adversary's fraud, and was_without_negligence of the losing party: Belle v. Brown, 37 Or. 592, 61 Pac. 1024; Neil v. Tolman, 12 Or. 289, 7 Pac. 103. In an action for trespass on land, where the defendant pleads liberum tenementum, and there is a judgment for the plaintiff in another action between the same parties, and such judgment is relied upon as an estoppel, it is for the party setting up such estoppel to show by evidence in what part of the close the trespass was committed, and thus apply the issue and the judgment to the premises: Abraham v. Owens, 20 Or. 511, 26 Pac. 1112. But the matter adjudicated to constitute a bar must be a fact in issue by the pleadings, as distinguished from a fact in controversy: Glenn v. Savage. 14 Or. 567, 13 Pac. 442; Applegate v. Dowell, 15 Or. 513, 16 Pac. 651. A judgment for want of an answer is a conclusive determination between the parties of every matter well pleaded therein and necessary to such judgment: Oregon Ry. Co. v. Oregon Ry. & Nav. Co. 28 Fed. 508. Where a boundary line has been settled in a former suit in which the controversy was as to its location, and not as to the title to the strip of land lying between the different lines claimed by the parties, the title to the strip, not being directly in issue, is not adjudicated by the determination of the boundary, and such suit is no bar to a subsequent suit to quiet title to the strip in question: King v. Brigham, 23 Or. 280, 31 Pac. 601, 18 L. R. A. 361. A suit brought by the assignee of one of two obligees in a bond for the conveyance of real estate is not a bar to a subsequent suit for specific performance between the same parties and concerning the same land, commenced after the plaintiff in the former suit had acquired the interest in the land of both obligees in the bond: Knott v. Stephens. 5 Or. 239. A person is not bound to obey a void judicial order; a voidable order, however, he is bound to obey until set aside in some direct proceeding: State ex rel. v. Downing, 40 Or., 66 Pac. 921. The court must have jurisdiction to render the decree in order to make it binding: State ex rel. v. Lavery, 31 Or. 82, 49 Pac. 852; Dowell v. Applegate, 24 Or. 440, 33 Pac. 937. The consent of the parties does not invest the court with jurisdiction; the law must confer it or it does not exist: Applegate v. Dowell, 15 Or. 513, 16 Pac. 651. A decree rendered by a county court in proceedings for adopting a child is not binding, where there was no citation to the parents of the child, such citation being a jurisdictional fact: Furgeson v. Jones, 17 Or. 204, 20 Pac. 842, 11 Am. St. Rep. 808, 3 L. R. A. 620. In an action on a foreign judgment the only question to be tried is the validity of the proceedings of the foreign court. The question of liability in the original case is not involved: Foshier v. Narver, 24 Or. 446, 34 Pac. 21, 41 Am. St. Rep. 874. A judgment or decree rendered by a court having jurisdiction of the parties and of the subject-matter, although erroneous, is not void, but only voidable, and is conclusive on the parties until reversed by some direct proceeding: Crabill v. Crabill, 22 Or. 588, 30 Pac. 320. When it appears that the court never considered the merits of the controversy, nor rendered any judgment affecting the same, but simply dismissed the plaintiff's action without trial and without evidence, such judgment of dismissal does not support a plea of former adjudication: Hughes v. Walker, 14 Or. 481, 13 Pac. 450. Where the judgment was simply an interlocutory order, and there had been no final adjudication, the parties are not bound thereby: Bybee v. Summers, 4 Or. 354. Dismissal of an action of replevin, because replevin will not lie for an undivided interest, is not a bar to an action for trover: Huffman v. Knight, 36 Or. 581, 60 Pac. 207. The decree binds the parties thereto and all in privity with them: Goldsmith v. Walker. 14 Or. 150, 12 Pac. 537; but it does not bind strangers. They can neither be benefited or prejudiced by it: Savage v. McCorkle. 17 Or. 49, 21 Pac. 444. A decree entered upon a stipulation of the guardian, entered with the consent of the court, will be binding on the minor to the same extent and to the same effect as if he were of full age: Savage v. McCorkle, 17 Or. 48. 21 Pac. 444. The judgment must be between the same parties in order to be binding in a subsequent proceeding: Miller v. Southern Pac. Co. 20 Or. 306. 26 Pac. 70; Dowell v. Applegate. 24 Or. 440. 33 Pac. 937. One not made a party to a foreclosure suit is not bound by the decree therein, but may attack the mortgage as though such decree had not been entered: Landigan v. Mayer, 32 Or. 253, 51 Pac. 649, 67 Am. St. Rep. 521. The parties must be the real parties in interest, and the identity is not destroyed by joining as additional parties in the second cause persons who were not parties to the former litigation, and who have no interest in the subject-matter: Neppach v. Jones, 28 Or. 287, 42 Pac. 519. In an action for damages for wrongful death it is not error for the trial court to refuse to admit as evidence the indictment and judgment of the conviction of a person not a party to the suit pending, for the killing of plaintiff's intestate by disarranging a switch on the defendant's railroad: Miller v. Southern Pac. Co. 20 Or. 306, 26 Pac. 70. The stockholder and his corporation are in privity as to an adjudication against the corporation in matters pertaining to duties it owes its members; but when the corporation sues a delinquent member for his stock subscription it can not be said to represent any shareholder so as to bind him by the result: Nickum v. Burckhardt, 30 Or. 465, 47 Pac. 888, 60 Am. St. Rep. 822, 6 Am. & Eng. Corp. Cas. (N. S.) 550. A judgment for defendant in an action by a receiver of a corporation against an alleged stock subscriber, involving the sole issue whether or not he was a subscriber at the date of the attempted organization, is not an estoppel against the receiver in a subsequent action to recover an unpaid subscription from another alleged stockholder. The action of the corporation was against the stockholder sued, and not in defense of the rights or interest of any other stockholder: Nickum v. Burckhardt, supra. A decree in a suit between A. and B. can not be introduced between B. and C. as an estoppel against B., for it is obvious that C. is not bound by that decree, and if he is not, then B. is not, for estoppels must be mutual: Morrison v. Holladay, 27 Or. 175, 39 Pac. 1100. It will be presumed that a decree followed the allegations and prayer of the complaint on which it was based, when the records are lost: State ex rel. v. Lavery, 31 Or. 81, 49 Pac. 852. The judgments or decrees of county courts in respect to the probate of a will are conclusive upon the question of the execution thereof: Jones v. Dove. 6 Or. 190. JUDGMENTS NOT CONCLUSIVE.-One who has acquired land as a homesteader may recover the possession from one who has purchased at à sale under an execution on a judgment based on a debt contracted prior to the actual issuance of the patent, although evidenced by a note executed after its issuance: Schultz v. Levy, 33 Or. 373, 54 Pac. 184. A judgment and execution is no bar to an action to recover possession of attached property on the ground that it was exempt from execution: Berry v. Charlton, 10 Or. 362. A decree approving a final account of an executor is not conclusive, but prima facie evidence only: Cross v. Baskett, 17 Or. 88, 21 Pac. 47. The awarding of alimony in a decree for divorce has not the effect of res judicata between the parties, and the court may, at a later date, modify its decree thereto: Henderson v. Henderson, 37 Or. 141, 60 Pac. 597, 48 L. R. A. 766. FORMER APPEAL THE LAW OF THE CASE.-A decision of the supreme court on a point distinctly made is, in all subsequent proceedings between the same parties, concerning the same subject-matter, and on the same facts, the law of the case, by which the court is bound, whatever its views might be on an original consideration of the case: Portland Trust Co. v. Coulter, 23 Or. 131, 31 Pac. 282; Powell v. Dayton, S. & G. R. R. Co. 14 Or. 22, 12 Pac. 665; Applegate v. Dowell, 17 Or. 299, 20 Pac. 429; Kane v. Rippey, 22 Or. 299, 29 Pac. 1005; Thompson v. Hawley, 16 Or. 251, 19 Pac. 84; Bloomfield v. Buchanan, 14 Or. 182, 12 Pac. 238; Budd v. Multnomah St. Ry. Co. 15 Or. 404, 15 Pac. 654; Roseburg Ry. Co. v. Nosler, 37 Or. 302, 60 Pac. 904. COLLATERAL ATTACK.-Collateral attack on a judgment or decree is any proceeding which is not instituted for the express purpose of annulling, correcting, or modifying such decree: Morrill v. Morrill, 20 Ör. 101, 25 Pac. 362, 23 Am. St. Rep. 95. The only subject that can be inquired into on collateral attack is whether or not the court rendering the decision had jurisdiction, and if jurisdiction appears, the decree is binding: Morrill v. Morrill, 20 Or. 96, 25 Pac. 362, 23 Am. St. Rep. 95; Bank of Colfax v. Richardson, 34 Or. 523, 54 Pac. 359, 75 Am. St. Rep. 664; Applegate v. Dowell, 15 Or. 528, 16 Pac. 651. The courts of the United States being courts of superior jurisdiction, their decrees are not open to collateral attack unless it affirmatively appears by the record they had no jurisdiction: Applegate v. Dowell, supra; but if the court has not jurisdiction, its decision has no binding force on collateral attack: Dowell v. Applegate, 24 Or. 440, 33 Pac. 937; Foshier v. Narver, 24 Or. 441. 34 Pac. 21, 41 Am. St. Rep. 874. An action for trespass on plaintiff's premises, defended on the ground that defendant entered on an established public road by authority of the road supervisor, is a collateral attack on the proceedings establishing the road, and the only question which can be considered is that of the jurisdiction of the county court in establishing said road: Sweek v. Jorgensen, 33 Or. 271, 54 Pac. 156. One in possession of certain chattels made a general assignment for creditors, and his wife, claiming to be the owner of a half interest in said property, sued the assignee and prevailed, whereupon the chattels were sold and half the proceeds paid to her attorney by an order of court. Thereafter a judgment creditor of the husband is precluded from garnishing the money in the hands of the attorney, as such former judgment was conclusive in an action at law, and it could only be attacked by direct proceedings in equity for that purpose: Schneider v. Lee, 33 Or. 578, 17 Pac. 269. Fictitious proceedings in the county court. by which the land of an infant is transferred to a third person who had previously executed a mortgage thereon in pursuance of a scheme to mortgage the infant's land. are not entitled to the force and effect of a judgment, and may be collaterally attacked in a suit to foreclose the mortgage: Conklin v. La Dow, 33 Or. 366, 54 Pac. 216. § 746. What Judicial Orders Create a Disputable Presumption. Other judicial orders of a court or judge thereof of this state or of the United States create a disputable presumption concerning the matter directly determined between the same parties and their representatives and successors in interest by title subsequent to the commencement of the action, suit, or proceeding, litigating for the same thing, under the same title, and in the same capacity. [L. 1862; D. Cd. § 724; H. C. § 734.] § 747. When Parties to be Deemed Same. The parties are deemed to be the same, when those between whom the evidence is offered were adverse to each other in the former case, and a judgment, decree, or other determination could in that case have been made between them alone, though other parties were joined with both or either. [L. 1862; D. Cd. § 725; H. C. § 735.] See note to § 745, ante. § 748. What Deemed to be Determined by Former Judgment. That only is deemed to have been determined by a former judgment, decree, or order which appears upon its face to have been so determined, or which was actually and necessarily included therein or necessary thereto. [L. 1862; D. Cd. § 726; H. C. § 736.] See note to § 745, ante. $749. Principal Bound by Judgment Against Surety. Whenever, pursuant to the last four sections, a party is bound by a record, and such party stands in the relation of surety for another, the latter is also bound from the time that he has notice of the action, suit, or proceeding, and a request from the surety to defend against the same. [L. 1862; D. Cd. § 727; H. C. $ 37.] $750. Effect of Judicial Record of Sister State. The effect of a judicial record of a sister state is the same in this state as in the state where it was made, except that it can only be enforced here by an action, suit, or proceeding, and except also that the authority of a guardian or committee, or of an executor or administrator, does not extend beyond the jurisdiction of the government under which he was invested with his authority. [L. 1862; D. Cd. § 728; H. C. § 738.] § 751. Effect of Record of Foreign Admiralty Court. The effect of a judicial record of a court of admiralty of a foreign country is the same as if it were the record of a court of admiralty of the United States. [L. 1862; D. Cd. § 729; H. C. § 739.] $ 752. Effect of a Foreign Judgment. The effect of the judgment, decree, or final order of any other tribunal of a foreign country, having jurisdiction to pronounce the same, is as follows: 1. In case of a judgment, decree, or order against a specific thing, the same is conclusive upon the title to the thing; 2. In case of a judgment, decree, or order against a person, the same |