Volume 10 — Oregon Reports

<p>Pbactice — Law—Equity.—An objection to the jurisdiction in equity, in the . absence of a demurrer on- the ground of an adequate remedy at law, comes too late after the defendant has, by his answer, put himself upon the merits, and the pleadings suggest no such defense.</p> <p>Public Lands — Homestead.—Where public lands are subject to be taken under the homestead acts, and a party has taken the initial to homestead, he has a right to the possession of the land for the purpose of doing the required acts to secure his title, and if he is prevented from taking possession by one without legal title, or equal equitable claim, he may ask a court of equity tó put him in possession of his rights.</p>

<p>Indictment — What wild Not Vitiate. — If from the whole indictment the intention to charge all the parties, named as defendants, with the commission of the alleged offense clearly appears, the use of a singular instead of the plural verb, in the commencement, showing who are accused, will not vitiate it.</p> <p>Idem. — Where the indictment charges the defendants with stealing “from and on the person,” the words “and on” may he rejected as surplusage.</p> <p>Discretion on? Court. — The decision of the court below, upon matters resting in its sound discretion and upon conflicting evidence, where such decision does not appear from the record to have been against the weight of such evidence, will not he disturbed on appeal.</p> <p>Circumstantial Evidence. — Evidence that the prosecuting witness, only a few hours previous to the time of the alleged larceny of money from his person, had in his possession the amount of money charged to have been stolen, was not immaterial or irrelevant, when offered in connection with other evidence, tending to prove the felonious taking from his person.</p> <p>Impertinent remarks of counsel, in the course of their arguments to the jury, unconnected with any error or omission of duty on the part of the court trying the case, affords no ground for a reversal of judgment.</p>

<p>Appeal from Marion County. The facts in the case are as follows:</p> <p>On December 10, 1879, Jette & Clark were indebted to plaintiffs, Hawley, Dodd & Go., in tbe sum of $617 03. That on said day defendants, in Portland, Oregon, gave Hawley, Dodd & Co. an order in writing, signed by defendants, and directed to J. D. Miller, of Oregon City, Oregon, ordering said J. D. Miller to pay to plaintiffs, on the 5th day of January, 1880, the sum of three hundred dollars. That on said 10th day of December, 1879, Miller was indebted to said firm of Jette & Clark, in said sum of $300, and was solvent. That plaintiffs received said order, and on tlie 12th day of December, 1879, presented tbe same to Miller for acceptance, and tliat tbe same was by said Miller on that day accepted. Tliat said order was never presented to Miller for payment. That on January 4, 1881, Miller became and ever since lias been insolvent. That on March 23, 1880, defendants paid plaintiffs the balance of said old account, to-wit: the sum of $317 03. That up to the time this case was tried, plaintiffs were still in possession of said order.</p> <p>Maintain that if at the time the order became due, the defendants had no funds in the hands of Miller to pay it, or no bona fide, reasonable or just expectation that it would be paid, they were not entitled to demand and notice of dishonor. (2 Daniels on Negotiable Instruments, secs. 1078, 1079, 1081; 1 Parsons on Bills and Notes, 539-540; Dickens v. Beal, 10 Peters, 578; Dollfus v. Fruseh, 1 Denio, 367.) There is no difference in this respect between a bill and a check. (Edwards on Bills and Notes, 397, 398, 646, 647.) Taking the order was no payment unless the order was paid. (Edwrards on Bills and Notes, 191, 192; Hays y. Stone, 7 Hill, 128;' lovttt v. Cornwell, 6 Wend., 378.</p> <p>Contend that it is the duty of the holder oí a bill of exchange to present the same to the drawee for acceptance, and to present it for payment according to the terms thereof, and to promptly notify the drawer in case of non-payment, and any failure in performing any of these duties, discharges the holder. (Mcmney v. Coit, 80 N. 0., 300.) The known insolvency of the acceptor of a bill is no excuse for non-presentment for payment. (Daniels on Negotiable Instruments, 193; Chitty on Bills, 396, 438; May v. Cofin, 21 Mass., 341; Benedict v. Coffey, 5 Duer, 226; JDmt v. Wadleigh, 26 Maine, 271; Jackson v. Richards, 2 Caine, 343.)</p>

<p>Appeal from Marion County.</p>

<p>Assignment foe Creditoes. — The recording of a deed of assignment is not essential to its validity, where possession accompanies conveyance of personal property.</p> <p>Inventory Rob Record. — 'The failure of an assignee to file an inventory for record does not render an assignment void.</p>

<p>Deed — Description—Parol Evidence. — A description of land in a deed, in which the initial point is described as “a stake set for a corner, near the road leading past the residence of William Henkle, it being the road leading from Corvallis to the Lloyd settlement,” and from which point the boundaries are given by course and distance, with certainty, and the whole tract stated to be in Benton county, Oregon, and to contain 100 acres, is not void for uncertainty, on the face thereof. Parol evidence is admissible to show the precise location of the stake.</p> <p>Attaching Creditor — Unrecorded Deed. — An attaching creditor without notice of a prior unrecorded deed of the property attached, made by the debtor in the writ to a third person, is not affected by such deed. He is entitled to the same protection as a bona fide purchaser, for a valuable consideration, would be under the same circumstances, by force of section 118 of the code. But notice of such unrecorded deed would affect him to the same extent as it would a subsequent purchaser for a valuable consideration. The object of the statute was to place them on an equal footing.</p> <p>Idem — Evidence.—Where the reasonable conclusion, from all the debtor said to his creditor, during a conversation between them prior to the levy of an attachment, in favor of the latter, upon the real property of the former, was that the debtor had made some arrangement or bargain for the sale of the property to a third person, but had not made a final disposition of it, nor received the purchase money, and such was the actual impression produced upon the mind of the creditor; Held, Not to be sufficient notice of a prior unrecorded deed of such property to such third person, to affect the rights of the creditor, under the subsequent levy of his attachment.</p>

<p>Appeal from Polk County. The facts are given in the opinion.</p>

<p>Appeal from Multnomah County.</p>

<p>Election Retuens- — Canvassing Boaeds. — A board of canvassers, in the exercise of ministerial functions only, have no power, in malting their canvass, to consider as election returns any paper not duly authenticated in the mode provided by the statute.</p> <p>Idem — Unauthenticated Papebs cannot be Consideebd. — An attempted canvass, in which the result declared is based upon papers not thus authenticated, may be treated as a nullity by the party injured, and unless the powers of the board have otherwise terminated, he is entitled to the writ of mandamus to compel them to reconvene and make a legitimate canvass of the proper returns.</p> <p>Idem. — The writ should not be issued where it is properly made to appear that it would be useless and unavailing to the party applying for it, but the Supreme Court possessing only appellate jurisdiction, in such instances as the present, is confined to such questions as the record shows were determined by the court below.</p>

<p>Statute of Limitations. — Where an instruction was asked to the effect that a certain amount applied as a credit by the creditor to the indebtedness of the debtor with his assent, was a payment which would take the same out of the operation of the statute of limitations; Held, That the refusal of such instruction was error; Held, further, That Section 25 of the civil code refers only to payments made on contracts before the statute has run against them, and fixes, by such payment, a new date from which the limitation of action thereon commences to run de novo.</p>

<p>Salmos — Columbia Rivek. — The act of the Legislative Assembly, entitled “an Act to protect salmon,” approved October 25, 1880, does not apply to the Columbia river.</p>

<p>Appeal from Clatsop County.</p>

<p>Appeal from Multnomah County.</p>

This was a suit for an accounting for moneys alleged to have been received by the respondents, as the board of commissioners for the sale of school, university and other lands belonging to the state, during the period from September 14, 1870, to September 14, 1874. After tbe cause was at issue, it was referred to Hon. M. P. Heady, Judge of tbe II.

<p>Peactice — Assignment oj? Eeeoes. — The supreme court will confine its examination to the assignment of errors in the notice of appeal, except in cases where the want of jurisdiction of the subject matter appears from the record, or the complaint fails to state a cause of action or suit.</p> <p>Idem — Finding oir Fact and Law. — A finding of fact and conclusion of law therefrom are “separately stated,” within the meaning of section 216 of the code, when the effect of each upon the final judgment is distinct and severable from that of the other.</p> <p>Idem. — Where the findings of the court below determine all material issues tendered by the new matter in the answer, it will be presumed on appeal that such issues were properly raised by a replication, although none appear in the transcript.</p>

<p>Appeal from Clatsop County,</p>

<p>Appeal from Wasco County.</p> <p>In 1878 the respondent let her flock of sheep to the appellant on shares. ' The contract was in writing, and among other things, bound the appellant to market the wool which should be shorn from the flock, at his own expense, and pay over to the respondent one-half of the gross proceeds. The action was brought on this contract, and the breach assigned was the appellant’s refusal to pay over to respondent hex-share of the proceeds of the alleged sales of the wool, amounting to $835 95. The appellant denied any breach, and averred payment in full of tlie respondent’s share of such proceeds.</p> <p>It was established at the trial that no sale of the wool had taken place previous to the commencement of the action, but that appellant had delivered it to a merchant firm at The Dalles for shipment to their correspondent at San Francisco, to be sold there on commission, and had received an advance of several hundred dollars on the wool from said firm. The court below charged the jury, in effect, that such acts, if proven, amounted to a conversion, and entitled respondent to recover the value of her property so converted, and the appellant excepted. The respondent obtained a verdict and judgment for $160 and appellant appealed, assigning said charges as error.</p>

<p>Appeal from Linn County.</p>

<p>Appeal from Coos County. Tbe facts are stated in tbe opinion.</p>

<p>Evidence — Ceethted Copy op Gebtiited Copy. — A certified copy of a certified copy is not competent evidence of tbe contents of the original record, unless made so by statute.</p> <p>Boundaby — Apeibming Pabty must Establish by Pboof. — Where land is described as lying between a boundary line of a certain lot “as laid out” by a person named, and another given line, and the existence of any intervening space is controverted, the party affirming must establish the boundary of the lot “as laid out” by the person named, by competent proof.</p> <p>Common Reputation — Peesumption.—Common reputation is competent evidence on questions of private boundary under the statute of this state, and wherever a practical location of boundaries is proven, a presumption arises that it is in conformity with the boundaries originally located, which presumption, in the absence of opposing proof, is sufficient to establish such correspondence.</p> <p>Idem. — The force of such presumption is not destroyed by proof of casual expressions of a former owner who neither knew nor professed to know the exact location, of the original lines, of his opinion simply in favor of a location somewhat different. Such expressions made without fraud furnish no ground of estoppel.</p> <p>Estoppel — Btjbden op Pboop. — Where the defense is that land was purchased with reference to and in reliance on the representation of boundaries on a certain map, and an estoppel is claimed, the burden of proving such averment, if denied, is on the defendant.</p> <p>Idem. — Where the defendant was notified of plaintiff’s claim to a certain tract of land the next day after he began to make improvements, and as soon as plaintiffs are shown to have had knowledge of his acts, Held, there was no estoppel.</p>

<p>Counties — Bodies Coepoeate. — By the law of this state each county is a “body politic and corporate” for the purpose, among oth'er things, “to sue and to be sued.”</p> <p>County Couets — County Business. — The county court, when exercising the authority and powers pertaining to county commissioners in the transaction of county business, is a court of inferior or limited jurisdiction, and has only such jurisdiction, and can only exercise such powers as are expressly conferred or necessarily implied.</p> <p>Judicial Acts Reviewaele. — The “decisions” given or made in the transaction of cónnty business referred to in section 875 of the code, which can only be re-examined by writ of review under the subdivisions of see. 870, are judicial in their nature.</p> <p>Pees op Oppioees — Action against County.' — When the law prescribes the services of the officer and the fees to be paid therefor, and directs that the county must pay such fees when the services are rendered, the county court, as the agent of the county, has nothing to do but to pay such fees — the occasion is not one which confers jurisdiction on the county court to render a “decision” either for or against its principal— it must pay or the county will be liable in an action at law.</p> <p>County Punds — Payment op Oppicees. — The general care and management of the county funds and business confided to the county court under subdivision 9 of section 870, while it authorizes the county court, as representative of the county, to pay the fees of officers for services rendered for the county, and, perhaps, all just and lawful claims against the county, does not necessarily imply the authority to audit and allow claims in the judicial sense “to hear and to determine,” and its refusal to pay such fees, in whole or in part, is not the exercise of judicial functions, or a “decision” which can only be reviewed by the writ of review provided by the code.</p> <p>Jueisdiction not Implied. — Such jurisdiction is not essential or necessary to enable the county court, as the financial agent of the county, to perform the duties imposed under that subdivision, nor to make it effective and operative, and cannot therefore be implied.</p> <p>County Coubt — Fiscal Agent op County. — In settling with the sheriff in such ease, the county court acts merely as the fiscal agent of the county, and in performing that duty, it acts precisely as would the agent of a private corporation, and for that purpose it does not constitute a court in the proper sense.</p>

The appellant filed his final account as one of the executors of the will of Daniel Harvey, deceased, in the county court of Multnomah county. Objections were filed to its allowance by the widow and heirs of the deceased, the respondents here. The matter was then referred to E. Quackenbush, James Steel and Shubrick Norris to hear testimony and report upon the disputed items in the account, and particularly upon the appellant’s claim for extra compensation.

<p>Sheeifes — Theie Duties. — Under seo. 16, art. 7 of the constitution, the duties of the sheriff are not necessarily confined to the execution of orders, judgment and process of the courts, the service of papers and the like, but may include the performance of such other duties as may be prescribed by law.</p> <p>Tax ColIíEotob not a Distinct Office. — When the legislature imposed the duty of collecting the taxes upon the sheriff of each county, and required him to file an additional bond to secure the increased public trust confided to him, no new or distinct office was created thereby. The effect was to impose additional duties only, and not to confer an additional office upon the sheriff of each county, and consequently the compensation which the sheriff received under the act of 1880, providing the compensation for sheriffs and clerks, etc., includes his compensation as tax collector, and was all the compensation to which he was entitled.</p>

<p>Appeal from Yamhill County. The facts are stated in the opinion.</p>

<p>County Funds — Tax-vayee may sue to Prevent Fbaududent Disposition op — A tax-payer has such an interest in avoiding an increase in the rate of taxation as will enable him to maintain a suit in equity to annul a fraudulent disposition of county funds, or property by the county court, under color of authority, and to restore the same to their proper custody, when necessary to prevent their loss to the county. The county is not a necessary party to such a suit.</p>

The facts are stated in the opinion. Contend that municipal corporations have no power except those expressly given, or which are necessary to the exercise of expressly conferred powers. {City of OaMa/nd v. Carpenter, 13 Cal., 540; Bobertson v. Groves, 4 Oregon, 210: Kent’s Com., 360 and note; Cooley on Const.

<p>Incomebtency 03? Jubob, Discovebed A3?tbe Conviction. — The prisoner’s counsel discovered, after conviction in a capital case, that one of the jurors, some years before, had. been convicted of a crime involving moral turpitude; Held, no ground for a new trial.</p>

<p>Appeal from Douglas County.</p>

<p>Appeal — Copy op Notice may be Waived. — On an appeal from the county to the circuit court, in a proceeding in which the county was defendant, the following admission, indorsed on the notice of appeal was offered to prove service of the notice:</p> <p>“State op Obegon, 1 Benton County, f</p> <p>I, B. W. Wilson, do hereby accept service of the within notice of appeal in Benton county, Oregon, this 13th day of October, 1881, and waive copy and all irregularities and informalities of said service.</p> <p>“B. W. Wilson, County Clerk.”</p> <p>Meld, That the county as a body corporate to sue and be sued, had a right to admit service of a copy of the notice of appeal, and that the clerk was the proper officer through whom to make such service.</p>

<p>Axu’eal from Douglas County.</p>

<p>Relinquishment oh Collateral Security Exonerates Surety. — The voluntary relinquishment by a creditor of collateral security of equal or greater value than the amount of his debt, will exonerate a mere accommodation surety from liability upon a promissory note executed by himself and the principal debtors in favor of the creditor as additional security for the payment of such debt.</p> <p>Idem. — Such defense is available to the surety in an action at law upon the note by the creditor, or his assignee, with notice of the facts.</p>

<p>Appeal from Marion County. Tbe facts are stated in tbe opinion.</p>

<p>Appeal from Multnomah County.</p>

<p>Appeal from Wasco Comity.</p>

<p>Attorneys — Opening Statement to Jury. — A party may, in the opening statement of his case, designate briefly the particular facts he expects to prove, and the evidence he intends to offer for that purpose; but it is the province of the court to prevent any abuse of this privilege.</p> <p>Declarations as to Title. — Evidence tending to prove a motive for falsehood in making declarations in disparagement of title, is admissible to impeach the credit otherwise due them, as being against the declarant’s interest.</p> <p>Witnesses— Cross-examination. — It is in the discretion of the court to permit a party to interrogate a witness during cross-examination, as to matters not connected with his direct examination, but relevant to the issue, subject to the same rules as on examination in chief.</p> <p>Husband and Wife — Incompetenoy to Testify. — Neither husband nor wife can be examined as a witness for or against the other, during the marriage or afterwards, without the other’s consent, as to any communication made by one to the other during marriage; and the failure of the attorney to make a suitable objection, will not, where such consent is wanting, render the witness competent. But, upon appeal from a judgment in an action at law, it will be presumed, in support of the judgment, that such consent was given, where the record does not show the contrary.</p>

<p>Appeal from Umatilla County. The facts are given in the opinion.</p>

<p>Toll Roads — Pkivate Coepobations. — A county court has no power, under sec. 26 and 28, title 2 of chapter 7, of Mis. Laws, to confer the right upon • a private corporation to establish a toll gate, and collect toll, upen a public highway, at a point not embraced in the line of its corporate road.</p> <p>Idem — How Established. — Location by some appropriate act on the part of such corporation, is essential to the establishment of its corporate road. The mere execution of the agreement proveded for in such sections, can have no such effect.</p>

<p>Appeal from Lane County. The facts are stated in the opinion.</p>

After the transcript had been filed in this case, and the cause placed upon the docket, J. W. Hamilton, Esq., district attorney of the second judicial district, appeared and filed a motion to dismiss the appeal, because, as he alleged, he had not taken the same for the state, or authorized any one to do so for him. Messrs. Wm.

<p>Appeal from Polk County. The facts are stated in the opinion.</p>

<p>Appeal from Marion County. The facts are stated in the opinion.</p>

Appeal.from Marion County. This was an action at law, brought by the state, against Mart. Y. Brown to recover the sum of $18,295 66 alleged to have been overpaid him through mistake, on account of materials furnished and printing done by him for the state, during his official term as state printer, from September, 1874, to September, 1878.

<p>Officers — Power of Governor to Appoint. — Under the act of 1878, providing for election of supreme and circuit judges in distinct classes, the election was postponed until the next general election. By virtue of an emergency clause, the act took effect from and after its approval by the governor. In the meantime, the offices created by the act were filled by appointment by the governor, as provided in the act. Held, that that portion of the act authorizing the governor to appoint the judges during the interim, was not in conflict with the constitution— that the offices came into legal existence when the act took effect, and ipso facto became vacant at their creation — and that an existing vacant office, without an incumbent, is vacant within the meaning of section 16, article 5 of the constitution, and can be filled by the governor by appointment.</p> <p>Statute — Constitutionality of. — Before a statute is declared void, its repugnancy to the constitution ought to be clear and palpable, and free from all doubt. The rule is rigid that every intendment should he in favor of its constitutionality.</p>

<p>Obeiciad Bond. — Delivery and acceptance of an official bond may be inferred from circumstances, where no particular mode is prescribed by statute. The possession of such a bond by the corporation in whose favor it is drawn, accompanied by possession of the office, the exercise of its powers, and the receipt of the salary attached to it from the corporation, by the officer malting such bond, are circumstances from which its delivery and acceptance may be inferred.</p> <p>Copies — Sevebal max be Gebtibied Togetheb. — Several different copies may be certified together by the legal custodian of the original records, under sections 73á and 738 of the civil code, by one certificate, properly) annexed, and referring to all such copies, so as to entitle them to ad-* mission as evidence. It is not necessary that a distinct certificate should be attached to each copy.</p> <p>Pbesumption. — Where county orders, drawn in favor of a particular person, have been issued by the county clerk, and are afterwards found in the possession of the county treasurer, endorsed with the name of such-person, and canceled as required by law upon their redemption by such treasurer, a presumption arises that they were received and endorsed by such party, in the usual course of business; and that payment thereof has been made to the party entitled thereto.</p> <p>Idem. — -And where bills against a county and in favor of a particular person, are found on file in the county clerk’s office, which have been allowed and orders drawn therefor, and delivered to such person, who 'has obtained payment thereof, the presumption is, that he'filed such bills, or caused them to be filed, and had knowledge of their contents.</p> <p>Compensation ob Pdbdio Obbtoebs. — The power of the legislature over the subject of compensation for public officers, in the absence of constitutional restrictions, is unlimited. It may provide what mode or measure it will, and m making such provision, is controlled by no principle of uniformity or equality.</p>

<p>Negligence — Action Fob — Bubden oe Pbooe. — In actions for negligence, the burden of proof always rests upon the party charging it. He must prove that the act was caused by the wrongful act, omission, or neglect of the defendant, and that the injury of which he complains was not the result of his own negligence and the want of proper care and caution.</p> <p>Ordinary Cabe. — What is “ ordinary care ” is of difficult definition, but is said to have relation to the situation of the parties and the business in which they are engaged, and varies according to the particular circumstances under which it is to be exercised.</p> <p>Common Knowledge — Judicial Notice. — Courts take notice of that which is common knowledge and experience, and when the admitted facts disclose a case which the general knowledge and experience of men condemn at once as careless, it isjhe duty of the court to declare it negligence in law. But when the facts, though undisputed, do not fall within the range of ordinary observation and experience they are plainly to be submitted to the jury under proper instructions from the court.</p> <p>Evidence — Jury to Weigh. — When the evidence stands admitted, or uncontroverted, it concedes to the plaintiff every proper inference deducible from it — anything which he may fairly claim from that evidence. He has a right to ask the jury to believe the case as he presented it, and however improbable some portions of the testimony may appear to the court, the eourj; cannot say that the jury may not give it full credence, and it is for them and not for the court to compare and weigh the evidence.</p> <p>Idem — Ordinary Oabe. — Where the evidence tended to show that a brakeman, in looking from a ear window, received an injury from a water-tank left recently, by widening of the track, at an unsafe distance from the side of the car, was in the performance of a duty arising out of the particular circumstances of his situation and connected with his employment, the question whether he exercised due care and caution and conducted himself in the usual way similar acts are done by persons in like employment, and other considerations of like character, do not fall within the range of ordinary observation and experience and should be submitted to the judgment and experience of the jury, under proper instructions from the court.</p> <p>Idem — Jubobs the Best Judges. — Twelve men drawn from the body of the community, comprising men of various occupations and grades of intelligence, better represent that average judgment which it is the aim of the law to obtain, and, which the law assumes, better understand the ordinary affairs of life, and can draw safer and wiser conclusions from admitted facts thus occurring than can one man, or a single judge.</p>

<p>Mechanics Lien. — The failure of the plaintiff, in a suit to foreclose a mortgage admitted to be a prior lien, to reply to the separate answers of a portion of the defendants, setting up subsequent mechanics liens upon a dwelling house, and a portion of the land, subject to the mortgage lien upon which it stands, together with a designated space around the same necessary to its use and occupation, and alleging the owners insolvency, and the sufficiency of the mortgage security, apart from the building and parcel of land on which the mechanics liens are claimed, does not justify a decree for the sale of the building separately from the land, and the ax>plication of the proceeds to the satisfaction of’such mechanics liens, before the mortgage debt has been satisfied.</p> <p>Idem — Building Past oe Fbeehold. — A building erected by the owner of the freehold, becomes a part of it as soon as annexed. The mechanics lien act of October 28, 1874, has not changed the common law rule on this subject.</p> <p>Appeal. — Suing out an execution on such a decree, does not debar a plaintiff from taking an appeal under the statute.</p> <p>Peesumpiion. — Where error is shown, injury is presumed; and such presumption controls, unless the record affirmatively shows that no injury could have resulted from the error.</p>

<p>Appeal from Clatsop County.</p>

<p>Appeal from Yambill County.</p>

<p>Appeal from Umatilla County.</p>

<p>Judgments!, Orders and Decrees may be Yacated. — Every court possesses the inherent power to vacate entries, in its record of judgments, decrees or orders, rendered or made without jurisdiction, either during the term at which the entries are made, or at any subsequent term.</p> <p>Demurrer — Will not die to Imperfect Description of Land..— A demurrer will not lie to a complaint, in a foreclosure suit, on the ground of insufficiency of description of the mortgaged premises, where such description purports to refer to natural objects, not judicially cognizable, and apparently includes a definite tract of land.</p> <p>Tender in Weiting. — An “offer in writing,” under sec. 816 of the code, to pay a definite sum of money, or to deliver a particular thing, takes the place of the actual production and proffer of the money to he paid, or thing to be delivered, but does not dispense with readiness and ability on the part of the person making the offer, to pay or deliver, at the time the offer is made.</p> <p>Idem — Burden of Proof. — The burden of proof, in establishing such readiness and ability when put in issue, is on the party claiming the benefit of the tender.</p> <p>Porecdosure Suit — Mortgagor Entitled to Answer Co-Defendants. — A mortgagor, or his successor in interest, made a defendant in the suit to foreclose, is entitled to answer the affirmative matter set up in the respective answers of his co-defendants, showing liens in their favor upon the mortgaged property, and to have the same determined, in the original suit. As to such matter his co-defendants are to he deemed plaintiffs, and their answers complaints.</p> <p>Idem. — No order of the court that the defendants interplead, is necessary in such cases, and it is error in the court to disregard such an answer when seasonably filed.</p> <p>Idem. — Misapprehension on the part of some of the defendants as to the correct practice in such cases, preventing them from properly presenting the merits of their claims upon the recordHeld, Under the peculiar circumstances, to justify remanding the case after reversal for a new trial in the lower court upon issues properly framed.</p>

On the 1st day of February, 1875, C. M. Carter borrowed $3,000 from John Sellwood, the appellant, and gave his promissory note therefor. At the same time, to secure the payment of said note, Carter and his wife joined in executing a mortgage to Sellwood on blocks 35, 47 and 58, in Carter’s addition to the city of Portland, Oregon, which mortgage was duly recorded in Multnomah county, in which said premises are situated, on the 5th day of the same month.

<p>Injunction. — An injunction will not be granted when tbe evidence is so ■ conflicting as to make the right to it doubtful. The burden of proof in such case being on the plaintiff, he must clearly establish the essential allegations in his bill.</p>

<p>Appeal from Polk County.</p>

<p>Evidence. — Where the question before the jury was the good faith of a sale of goods, whatever was said and done by the parties to that transaction, eotemporary with it, and which tend to explain or elucidate its character, are parts of that transaction, and as such are admisible in evidence and may be provemby either party at the trial.</p>

Motion by appellants to substitute sworn copy for- an original exhibit that had been lost or destroyed before the transcript for appeal was sent up. Cross-motion by respondents to dismiss appeal for such defect in transcript; Held,

<p>Appear from Marion County.</p>

<p>Appeal from Multnomah County.</p>

<p>Appeal from Grant County.</p>

Contend that there is no ground for admitting evidence as to the amount of appellant’s property, except ás a basis for vindictive damages, which are not allowed in cases like this. The objection lies with much greater force to testimony as to the respondent’s financial circumstances and family relations.

<p>Appeal pbom Obdeb Conitbming Sheeuv’s Sale. — The order of confirmation of a sheriff’s sale on execution, is appealable.</p> <p>Idem. — The objections to a confirmation of a sheriff’s sale on execution, allowed by the statute, must be filed within the time prescribed in the statute, and cannot be filed afterwards without leave obtained from the court.</p>

<p>Appeal from Linn County. The facts arfe stated in the opinion.</p>

<p>Judgment Obtained by Ebaud wili, be Set Aside. — A judgment obtained by tbe improper management or fraud of a party against one wbo has a good defense to an action at law, will be set aside and tbe proceedings under it enjoined.</p>

<p>Appear from Jackson County.</p>

<p>Appeal from Polk County.</p>

<p>Appeal from Curry County.</p>

<p>Appeal from Clackamas County.</p>

<p>Appeal from Multnomah County.</p>

<p>Appeal from Multnomah County.</p>

Issue was joined in tbe pleadings upon tbe question as to whether or not defendant’s ditch was a nuisance to plaintiff. Such being the case, we contend that the general verdict of the jury “ for the plaintiff ” was a decision of all the issues of the action in favor of the plaintiff — among others, that the ditch was a nuisance.

The facts are stated in the opinion. The circuit court erred in permitting the plaintiff, while testifying as a witness, to point out to the jury, upon a diagram purporting to show the house, office and safe from which the money mentioned in the complaint was alleged to have been stolen. It was not authenticated by any authority and was totally incompetent as original testimony. It was not made by the witness, and could not, therefore, be referred to to refresh his memory.

<p>Appeal from Marion County.</p>

STATEMENT. This was a suit in equity for an accounting, brought by tbe state of Oregon against tbe defendants in tbe circuit court for Marion county. Tbe complaint was filed June 3, 1879.

<p>Appeal — Parties—An appeal will not be dismissed for want of necessary parties, where as between the parties to the appeal, the decision appealed from may be reversed or modified in some substantial particular without affecting the rights of other parties to the litigation in the court below, under such decision, who have not been made parties to the appeal.</p> <p>Idem — Notice—Undertaking.—The undertaking for an appeal may be filed at any time after service of the notice, although on the same day. Where the undertaking appears to have been filed on the same day the ■ notice is served, the law will presume it was filed afterwards.</p> <p>Idem — Notice must be Signed by Attorney, when — If the appellant appeared by attorney in the court below, and the record fails to show any change and appearance by himself in person, the notice of appeal must be given by such attorney, and a notice purporting to be given and signed by the appellant in person is invalid, and will not enable him to maintain his appeal.</p>

<p>Appeal from Wasco County.</p>

<p>Evidence — Right op Wax. — Evidence of an effort having been made, before the commencement of an action, to agree as to the compensation for a right of way, is a prerequisite to establish a cause of suit.</p> <p>Tendee and Paxment into Couet. — Payment into court is a positive admission of damages to the amount of the tender, and when so paid it becomes the money of the party to whom the tender is made.</p> <p>Easement. — In an action for right of way, an easement is all that can be acquired by a railway. A title that may be freed from public use, cannot be acquired by a private corporation by eminent domain. Land can only be taken for the particular use for which it is sought to be appropriated.</p>

<p>Appeal from Marion County.</p>

<p>Appeal from Multnomah. County. The facts are stated in the opinion.</p>

This action was brought by the state against Chadwick and bis bondsmen, to recover damages in the sum of $10,-000, because the said Chadwick did not comply with the conditions of his bond in negligently and unfaithfully discharging the duties of the office of secretary of state, from September 14, 1874, to September 9, 1878.

<p>Appeal from Multnomah County.</p>

<p>Appeal from Umatilla County. The facts are stated in the opinion.</p>

<p>Attoeneys. — R. D. S. & Co. placed accounts against clivers persons in the hands of G. & L. for collection, and agreed that they should have ten per centum on the amount collected by them as compensation for their services. While such accounts were still in the hands of O. & L. for collection under said agreement, and they were exerting themselves to bring about their payment, the sums due on a large number of them were paid directly to R. D. S. & Go. In a suit for an accounting and settlement afterwards brought by the latter against the former in respect to the collection of such accounts; Held, That O. & L. should be alallowed the stipulated commission on the sums so paid to R. D. S. & Go.</p>

<p>Appeal from Benton County.</p>

<p>Jurisdiction — Service oe Summons. — From the time of the service of a summons in a civil action, the court is deemed to have -acquired jurisdiction, and to have control of all the subsequent proceedings.</p> <p>Idem. — In legal contemplation, the court acquires jurisdiction by the proper service of process, and the defendant is in court, and charged with notice of whatever action the court has taken during the pendency of the action.</p> <p>Idem — Judgment—Coldateeai, Attack.- — The fact that the defendant has not been given all the time allowed by law to plead, after proper service of the summons, will not so vitiate the judgment as to make it a nullity, and subject to collateral attack.</p>

<p>Appeal from Polk Comity.</p>

<p>Warehousemen — Storage—Conversion.—A warehouseman receiving grain on storage, and mixing it with other grain of the same nature and quality also stored in his warehouse, in the usual course of business, is not chargeable with a conversion by reason of such act alone.</p> <p>Idem. — In a suit in equity, brought by the mortgagee in a chattel mortgage to enforce his lein on the mortgaged property in the. hands of several parties who have acquired possession since the mortgage lien attached to the property, a personal decree against one of such parties for the full value of the property based wholly on a mere technical conversion, not occasioning any loss of the security, nor in any manner interfering with the plaintiff’s recourse upon it in the hands of another of said parties, also a defendant in the suit, cannot be sustained. It is not technical injury, but real loss, in respect of the security afforded by the mortgage lien, caused by the wrongful act of a defendant, that determines the question of his personal liability in a suit of this character.</p>

<p>Felony — Aiding and Abetting. — One present, aiding and abetting in the commission of a felony, may be convicted on an indictment charging him directly with the commission of the fact-</p>

<p>Appeal from Clatsop County.</p>

<p>Process — Substituted Service — What Returns Must Show. — Substituted service of process on a corporation must show the facts which confer jurisdiction.</p>

<p>Appear from Benton County.</p> <p>This was a proceeding instituted in the county court of Benton county for the establishment of a county road. The proof of service of notice of the presentation of the petition recites that notices were posted: “Three in public places in the vicinity of said proposed road, and one at the place of holding the county court for Benton county, Oregon, at least thirty days immediately prior to this (May, 1881,) session of said county court, * * * and the said notice and the petition for said road are signed by more than twelve householders of Benton county, Oregon, in the vicinity of said road.” The record discloses the fact that there are thirty-two more names of petitioners on the petition than there are signed to the notice. Other facts necessary to understand the case are stated in the opinion.</p>

<p>Arpead from Wasco County.</p>

<p>Abmihistbajob — Action Against. — In an action against an administrator it is essenttal that the complaint should show that letters of administration had been granted six months before the action was brought. An allegation in a complaint against an administrator, that on the 3d day of November, 1879, an order or determination of the county court was duly made appointing J. A. administrator of the estate of C. A., deceased, is not an allegation that letters of administration were granted on that day, as required by section 373, civil code. The form, (1 Este’s PI., 312,) is not applicable in this state.</p> <p>Maeeieb Women. — Under the constitution of this state, a contract made by a married woman is not necessarily void. But the burden is on the party setting up such a contract to show that it was entered into for an object for which she could lawfully contract.</p>

The referee having heard the allegations and proofs of the parties and the arguments of counsel in the above entitled case, now finds and states the following conclusions of fact therein: 1.

The referee having heard the allegations and proofs of the parties and the arguments of counsel, now finds and states the conclusions of facts herein as follows: I. That at the general election held in June, 1870, the defendant, S. F. Chadwick, was duly elected secretary of state for the state of Oregon; and that afterwards, to-wit: on July 1, 1874, said defendant as principal, together with the other defendants herein, namely: Aaron Rose, Asher Marks and B. P. Smith, as his…

<p>Error to the Clackamas Circuit Court.</p>