as the plaintiff in that action must have a legal estate in the property as well as a right to the possession. Section 313, Civil Code. This is not an estate; it is but a privilege or benefit. Executors and administrators are entitled to the possession of the estate for the purpose of administration; but they cannot recover the possession of it in such action, (Humphreys v. Taylor, 5 Or. 260,) and I think it doubtful that a purchaser of real property upon execution could, although entitled to the possession from the day of sale until a resale. Section 304, Civil Code. Nor could such a privilege be enforced by an action of forcible entry and detainer. The merits of the title cannot be inquired into in such action. Section 16, c. 23, Misc. Laws. The widow in the outset is required to prove that her husband was seized of the dwelling-house at the time of his death. The right only applies to lands of which he was owner, and not to a leasehold estate. Voelckner v. Hudson, 1 Sandf. 215.

In the present case, it is alleged, as we have seen, that the respondent's husband, at the time of his death, was the owner, and seized in his own right, of said premises. This allegation was flatly denied in the answer. That issue was squarely presented to the justice's court for trial. Upon the trial in the circuit court, and probably before the justice, also, a deed was introduced in evidence upon the part of the respondent, apparently made and executed by the appellant John Aiken and his wife to the said George E. Aiken, in 1880, which purported to convey from the former to the latter the said premises. This proof was in direct support of the allegation of the complaint, and was entirely pertinent. A question of title to real property was as effectually tried as though the proceeding had been an action to recover the possession of real property. There might be cases. of intrusion, in which a party could resort to the remedy of forcible entry and detainer without any greater right in the premises than the one under consideration, with no right, in fact, beyond that of prior occupancy. But this case, as made by the pleadings and the evidence shown in the bill of exceptions, is in the nature of an ouster by deforcement. The respondent sought to recover possession by reason of her husband's having been the owner of the premises, and of her relation to him as his widow. The title was necessarily litigated. Consequently, the justice before whom the action was tried had no jurisdiction, and the appeal to the circuit court did not give that tribunal jurisdiction. I do not think in such a case that a party is destitute of a remedy. All the common-law remedies are preserved under our system of jurisprudence in some form or other. They are not in all cases specifically pointed out, nor do we have any mode for devising or framing writs, but we have a general provision in our law preserving a remedy for every wrong a court of justice has power to redress. Section 911 of the Civil Code enacts that "when jurisdiction is by the organic law of this state, or by this Code or any other statute, conferred on a court or judicial officer, all the means to carry it into ef

fect are also given; and, in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by this Code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code. Section 9 of article 7 of the constitution of the state declares that all judicial power, authority, and jurisdiction not vested by the constitution or by laws consistent therewith exclusively in some other court, shall belong to the circuit courts. The result follows that all the enumerated remedies for the enforcement of legal rights, where the jurisdiction is not vested exclusively in some other court, belongs to the circuit court, and any suitable process or mode of proceeding may be adopted for their enforcement which may appear most conformable to the spirit of the Code. There need, therefore, be no failure of justice, under the jurisprudence of this state, in consequence of the mode of proceeding pointed out being inadequate to afford a remedy in a particular case, as any remedy in such case may be adopted, subject to the qualification mentioned. It is beyond the scope of legislative wisdom to prescribe a specific remedy for every class of cases that may arise in the complication of human affairs, and it was not attempted; but ample provision was made to prevent a party from being left remediless in case of an infringement upon his legal rights, and the courts must of necessity recognize the provision and carry it out when a proper case is presented.

For the reasons before expressed the judgment must be reversed, and the case remanded to the circuit court with directions to dismiss it for the want of jurisdiction of the justice's court, and of that court, upon appeal, to determine it.

(12 Or. 210)

HAWTHORN and others v. CITY OF EAST PORTLAND.
Filed April 17, 1885.

PRACTICE-FILING UNDERTAKING-UNINTENTIONAL ERROR IN FILING-CHANGING
DATE OF FILING BY CLERK.

Appeal from Multnomah county. Motion to dismiss appeal.
Julius C. Moreland, for the motion.

S. R. Harrington, contra.

THAYER, J. This motion was filed on the part of the respondent herein to dismiss the appeal taken from the circuit court for the county of Multnomah by the appellants. The grounds of the motion were that no undertaking on appeal had been filed as required by law. Upon the filing of said motion the appellant filed what is termed a cross-motion, for leave to perfect the said appeal by filing a new undertaking in this court. The filing of the latter motion is, in effect, a confession of the fact that no sufficient undertaking has been filed; and hence the only question for our determination is whether the appellant has shown such a mistake in omitting to per

fect its appeal in the manner mentioned as will authorize this court to permit it now to correct the omission.

It appears that Mr. Harrington, the city attorney of the city of East Portland, was directed by the common council of that city to take an appeal in the case, and that he has been making efforts for some time in that direction; that some time in December last a notice of appeal was served upon the respondent, but was not perfected, and that on the sixteenth day of January, 1885, said city attorney prepared a notice of appeal in the case, and an undertaking, and that he delivered the undertaking to Mr. I. N. Saunders, the mayor of said city, with directions to have it executed, and that subsequently, and on the twenty-second day of January, 1885, he served the said notice on the respondent, and filed the same, with proof of service, in the office of the clerk of said circuit court.

It also appears that Mr. Saunders, who is the county clerk of said county of Multnomah, as well as mayor of said city, after receiving said undertaking procured it to be duly executed, and thereupon, and on the seventeenth day of January, 1885, marked it filed as of that day, without having called Mr. Harrington's attention to the fact; that the latter, upon filing such notice of appeal, ascertained from the clerk said fact, and thereupon informed Mr. Saunders that he did not intend to have him file said undertaking until the service of the notice of appeal, and that he only delivered it to him to have it executed. The said undertaking was then among the archives of the court. But Mr. Saunders, discovering that he had prematurely marked it filed, and thinking that it would not be improper to correct the error, changed the date of the filing to the twenty-seventh day of January, 1885, though in his certificate to the transcript forwarded to this court he certified that the undertaking was filed on the seventeenth day of January, as originally marked filed. The said city attorney, however, supposing that the clerk, under the dual position he occupied, could change the said file-mark as mentioned, paid no further attention to the matter until he ascertained that said motion to dismiss his appeal had been filed and that the certificate to the transcript indicated the date of filing as of said seventeenth day of January. I think we may reasonably conclude that the affair was a mistake within the meaning of subdivision 4 of section 527 of the Civil Code.

In the hurry and bustle of a large law practice, an attorney cannot be expected to personally attend to every act in the course of his duty. He must necessarily rely upon others to assist in the details of his business. The attorney in this case had prepared the undertaking and relied upon Mr. Saunders' having it executed, and the latter supposed that it would be proper to mark it filed when executed; and when he ascertained that he had made a mistake in doing so, supposed he had a right to correct it. He could very properly have done so if he had not deposited it with the files of the court; after he did.

that he lost control over the matter, and should not have attempted it, though I think the clerk was acting in good faith at the time. Mr. Harrington, however, may not have known but that the former was at this time retaining the paper in his character as mayor, in which case he could properly have changed the date of filing. The appeal was evidently taken in good faith, and the court should hesitate to dismiss it when there is an apparent mistake. The attorney for the appellant may not have given the matter that particular attention that he should; he brought the transcript here in the faulty condition shown, and the respondent was fully justified in filing the motion to dismiss. I believe, therefore, that the cross-motion should not be allowed except upon terms. An order will therefore be entered permitting the appellant to file such undertaking upon payment to the respondent's attorney of the sum of $10.

PARTNERSHIP PROOF OF, IN ACTION BY-CIVIL CODE CAL. §§ 2466, 2468. A partnership, to maintain an action as such, must aver and prove the existence of the partnership by showing the filing of the proper certificate, and publication thereof, as required by the statute.

Department 2. Appeal from the superior court of the city and county of San Francisco.

H. S. Brown, for appellant.

E. P. Cole, for respondents.

BY THE COURT. The plaintiffs sued as co-partners, and averred in their complaint that they had filed a certificate stating the names in full of all the members of the partnership, and their places of residence, and that the same had been published once a week for four weeks in a newspaper, naming it, and that the certificate was signed by both the partners and acknowledged. These averments were specifically denied by the defendant in his answer. The plaintiffs thus distinctly presented the issue, and the defendant joined therein. It then became necessary for plaintiffs to sustain the issue on their side by evidence. There was no evidence that the plaintiffs had caused a certificate of their partnership to be published, as required by sections 2466 and 2468, Civil Code. Defendant asked the court to instruct the jury that the plaintiffs could not recover in the action because it appeared that they had not complied with the provisions of the sections above named, and the court refused the instruction.

On the authority of Byers v. Bourret, 64 Cal. 73, the judgment and order are reversed, and cause remanded for a new trial.

1 Affirmed in banc. See 8 Pac. 444, 67 Cal. 635.