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. § 737.] $ 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 creates a disputable presumption of a right as between the parties and their representatives and successors in interest by title subsequent, and can only be overcome by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. [L. 1862; D. Cd. § 730; H. C. § 740.] § 753. Impeachment of Judicial Record. Any judicial record may be impeached and the presumption arising therefrom overcome by evidence of a want of jurisdiction in the court or judicial officer, or collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings. [L. 1862; D. Cd. § 731; H. C. § 741.] See note to § 745, ante. 754. Jurisdiction Necessary to Judgment. The jurisdiction sufficient to sustain a record is jurisdiction over the cause, over the parties, and over the thing, when a specific thing is the subject of the determination. [L. 1862; D. Cd. § 732; H. C. § 742.] § 755. Manner of Proving Other Official Documents. Other official documents may be proved as follows: 1. Acts of the executive or administrative departments of this state and of the United States by the records of such departments, certified by the heads thereof respectively; they may also be proved by public documents, prepared or printed by order of the legislative assembly, or congress, or either house thereof; 2. The proceedings of the legislative assembly of this state, or of congress, by the journals of those bodies respectively, or either house thereof, or by statutes or resolutions published by their order, or by copies thereof certified by the clerk or other legal keeper of the originals; 3. The acts of the executive or administrative departments, or the proceedings of the legislature of a sister state, in the same manner; 4. The acts of the executive or administrative departments, or the proceedings of the legislature of a foreign country, by journals, statutes, or resolutions, published by their authority respectively, or commonly received in that country as such, or by a copy thereof certified under the great or principal seal of such country or the sovereign thereof, or by a recognition thereof, in or by some public act of the executive of the United States; 5. Acts of a public corporation of this state, or of a board or department thereof, by a copy certified by the legal keeper thereof, or by a printed copy published by the authority of such corporation or department thereof; 6. Documents of any other class in this state or the United States by the original, or by a copy certified by the legal keeper thereof; 7. Documents of any other class in a sister state, by the original or by a copy certified by the legal keeper thereof, together with the certificate of the secretary of state, judge of a court of record, or mayor of a city, of such state, that the copy is duly certified by the officer having the legal custody of the original; 8. Documents of any other class in a foreign country, by the original or by a copy certified by the legal keeper thereof, together with a certificate under the great or principal seal of the country or sovereign thereof, that the document is a valid and subsisting document of such country, and that the copy is duly certified by the officer having the legal custody of the original. [L. 1862; D. Cd. § 733; H. C. § 743.] The testimony of a credible witness, whether a lawyer or a layman, with reasonable means of information, to the effect that a volume containing what purports to be a statute of a foreign country is commonly 756. Public Record of Private Writing. received in the business and courts of such country as such, is competent and sufficient proof of the existence of such statute: Dundee Mortg. Co. v. Cooper, 26 Fed. 665. A public record of a private writing may be proved by the original record, or by a copy thereof, certified by the legal keeper of the record. [L. 1862; D. Cd. §734; H. C. §744.] The contents of public records can not be proved by parol, as a general proposition: State v. Byam, 23 Or. 568, 32 Pac. 623. Several copies annexed from the records of one custodian may be authenticated by one certificate: Portland v. Besser, 10 Or. 242. A certified copy of a certified copy of a record is not admissible: Goddard v. Parker, 10 Or. 102. § 757. Entries in Official Book prima facie Evidence. Entries in public or other official books or records, made in the performance of his duty by a public officer of this state, or of the United States, or by another person in the performance of a duty specially enjoined by the law of either, are primary evidence of the facts stated herein. [L. 1862; D. Cd. §735; H. C. §745.] The recitals of a journal entry as to the day on which a judgment was rendered can not be contradicted in the supreme court by a certified memorandum kept by the clerk of the trial court: Hislop v. Moldenhauer, 24 Or. 107, 32 Pac. 1026. The entries themselves as here required are evidence, but mere certified or office copies from such books are not evidence, unless the officer in charge of such books is authorized to give out and certify copies thereof: Brown v. Corson, 16 Or. 397, 21 Pac. 47. § 758. Justice's Judgment in other States, how Proved. A transcript from the record or docket of a justice of the peace of a sister state, of a judgment given by him, of the proceedings in the action or proceeding before the judgment and subsequent thereto, if any, verified in the manner prescribed in the next section, is primary evidence of the facts stated therein. [L. 1862; D. Cd. § 736; H. C. § 746.] § 759. Certificate Must be Attached to Transcript, Showing what Facts. There shall be attached to the transcript a certificate of the justice having the legal custody of the record or docket, that the transcript is in all respects correct and complete, and that the justice who gave the judgment had jurisdiction of the action, together with the certificate of the clerk of the county, having official cognizance of the fact, in which the justice resided at the time of giving the judgment, under the seal of his office, that the person certifying the transcript was, at the date thereof, a justice of the peace in the county, and that the signature is genuine. [L. 1862; D. Cd. § 737; H. C. § 747.] § 760. Official Certificate. Whenever a copy of a writing is certified to be used as evidence, the certificate shall state that the copy has been compared by the certifying officer with the original, and that it is a correct transcript therefrom, and of the whole of such original, or of a specified part thereof. The official seal, if there be any, of the certifying officer, shall also be affixed to such certificate or any other certificate, except when the certificate of a clerk of a court is used in the same court, or before an officer thereof. [L. 1862; D. Cd. § 738; H. C. § 748.] In certifying to a copy of a record it is necessary, under this section, for the certifying officer to show that the copy is a correct transcript therefrom, and of the whole of such original, in order that it may be competent evidence: Abraham v. Owens, 20 Or. 514, 26 Pac. 1112. Where a transcript in a cause was filed in time, but the clerk failed to certify that he had compared it with the original, as required by this section, and it had to be sent back to be amended, which was not done until after the expiration of the time allowed to file such transcript, the appellant is not responsible for such delay, and his appeal is not affected thereby: State ex rel. v. Estes, 34 Or. 209, 55 Pac. 25. Several copies may be certified together by one certificate, properly annexed and referring to all of such copies, so as to entitle them to admission as evidence: Portland v. Besser, 10 Or. 249. Where this statute is the controlling one, if the certificate does not state that the copies have been compared by the officer with the original, they are not admissible as evidence: Bloomfield v. Humason, 11 Or. 230, 4 Pac. 332. $ 761. Provisions of this Title Apply to District of Columbia or Territory. The provisions of this chapter applicable to the public writings of a sister state are in like manner applicable to the public writings of the District of Columbia or a territory of the United States. [L. 1862; D. Cd. 8739; H. C. § 749.] CHAPTER VII. OF PRIVATE WRITINGS AND MATERIAL OBJECTS. $ 762. Private Writings Classified. Private writings are either, 1. Sealed; or, 2. Unsealed. [L. 1862; D. Cd. § 740; H. C. § 750.] $763. Seal Defined. A seal is a particular sign, made to attest in the most formal manner the execution of an instrument. [L. 1862; D. Cd. § 741; H. C. § 751.] § 764. Manner of Making Seal. A public seal in this state is a stamp or impression made upon wax, |