Volume 11 — Oregon Reports

<p>Replevin—Demand, when not Necessaev.'—In replevin, when the original taking was wrongful, the fact that the defendant came into the possession of the property without any imputation of fraud, or intention to do wrong, cannot make his possession lawful as against the true owner. The wrongful taker could have no lawful possession against such owner, nor could he convey any to another, and without a party obtains possession lawfully, a demand is not necessary. The necessity of a demand is to put the defendant in the wrong when he acquired the possession legally.</p>

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

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

<p>Attobney’s Fees—May be Stipulated eob in Note.—A stipulation for reasonable attorney fees, in a promissory note, in tbe event of an action being instituted to collect tbe same, is valid and enforceable against tbe maker of tbe note.</p>

<p>Evidence—Mistake in Written Instrument.—Plain mistakes, like fraud, constitutes one of the exceptions to the rule which, forbids the admission of parol evidence to modify or contradict written instruments; but to authorize a court of equity to correct mistakes in such instruments the mistake must be alleged, and made out by clear and satisfactory proofs.</p> <p>Idem.—So, too, courts of equity will grant relief in cases of mistakes in judgments, decrees, or other matter of record, when the mistake is not judicial, and there is no means of obtaining relief.</p> <p>Pleading—Where a complaint alleges the facts constituting the mistake, although encumbered with other redundant matter, it will not be held insufficient on that account. The objectional allegations could have been expunged in the court below.</p>

<p>Conversion.—A conversion is defined to be “Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it.”</p> <p>Property—Assuming to Dispose op is a Conversion.—Where a party assumes to himself the property, and the right of disposing of another man’s goods, it is a conversion. It is the assuming to dispose of the property of another, in a manner subversive of the dominion which the owner has over it, that constitutes the conversion.</p>

<p>Eobmee Conviction—Twice in Jeobaedy.—The plea of a former conviction must be upon a prosecution for the same identical offence. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence.</p> <p>Witnesses—Theie Pbiyibeges and Rights.—The same principle which assures to a witness the privilege of explanation when contradictory declarations are offered, applies to assure him the right of explanation when declarations of hostility are sought to be introduced.</p>

<p>Chattel Mortgage—Gabnishee.—A chattel mortgage, previous to foreclosure, confers no title or interest in the property covered by it on the mortgagee, which is subject to levy and sale on execution against him. Nor has the court any jurisdiction in proceedings supplemental to execution, under the provisions of title 2, chap. 3 of the code of civil procedure, to direct the foreclosure of such a mortgage and the application of the proceeds towards the satisfaction of the judgment against the mortgagee, upon which the execution was issued.</p>

<p>The appellant Bovee filed a motion for an enlargement of the'time within which to file the transcript on appeal. Held,</p>

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

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

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

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

<p>Vendob’s Lien.—A vendor’s lien on real restate oanDot be set up'by an apparent stranger to tbe transaction of sale, who claims to have had parol contracts for sale with the grantors, and that the conveyances to the defendant were made through the instrumentality of the plaintiff as the virtual owner.</p> <p>Semble.—That in this state the vendor of real estate by an absolute deed, has no lien thereon for the unpaid purchase money.</p>

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

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

<p>Action to Recover Possession op Real Property.—The provisions of section 316 of the code, in respect to pleading “any license or right to the possession’’ of real property as a defense, in an action for the recovery thereof, refer only to such license or right to possession as would constitute a legal defense, and cannot be held to include mere equitable rights.</p> <p>Estoppel.—Matters constituting an equitable estoppel simply, are unavailing as a defense in such an action.</p> <p>Practice.—Where several separate defenses are pleaded, a portion only of which is good and is returned, referring to and sustaining the good defenses solely, the record being otherwise silent as to the proceedings on the trial, any error of the court committed in sustaining the invalid defenses against motion or demurrer will be disregarded on appeal as having produced no injury.</p>

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

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

<p>Wills—Pepetuity.—Held, construing the will of Delia Delschneider, (1) that the limitations to the children of the daughters of the testatrix, H. and L., were contingent remainders, dependent—First, on attaining to the age of majority; and, second, on surviving, or leaving issue surviving, the determination of the life estate; (2) that after the death of the tenant for life, the fees vested absolutely in such of the children as were of full age, subject to a temporary restraint on alienation; that children under age, took qualified fees, defeasible on the contingency of dying during minority; that the cross limitations over were executory devises that muse take effect, if at all, within lives in being, and 21 years afterwards, and, therefore, not too remote.</p>

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

<p>Coepoeations—Gaenishee.—The property or funds of a private corporation, not having been declared a dividend, in the hands of a stockholder, is subject to execution on a judgment against the corporation, and the execution creditor is entitled to the remedy by “proceedings supplemental to execution,” provided by the code, to enforce payment of his demand.</p>

The plaintiffs in the lower court and respondents herein, brought suits -against the Oregonian Railway Company,.

<p>Muedeb—Indictment—Subeutsagb Wobds in.—In an indictment charging the defendant with having “purposely and of deliberate and premeditated malice killed” the deceased, “by then and there unlawfully and feloniously shooting him,” &e., Held, That the words “unlawfully and feloniously” are surplusage, and that the indictment charges murder in the first degree. A record reciting that the defendant^ “personally appeared in open court and was duly arraigned on said indictment,” &c., held sufficient as to the arraignment. It is no ground of error that the court in which a criminal action for a felony is pending, sets the time for trial during the absence of the defendant; it is no part of the trial itself. No objection to the proceedings in the circuit court, in any case, can be considered in the supreme court, which has not in effect been passed upon by the lower court. Misconduct of a party or his attorney during the progress of a cause through a lower court, preventing a fair trial, without error on the part of the court, or default of the injured party, must first be presented as ground for anew trial to make it available on appeal. Where a defendant in a criminal action offers himself as a witness in his own behalf on the trial, under the law of this state, he subjects himself to the same rules of cross-examination as an ordinary witness. The substance of the contradictory statements, imputed to a witness in the impeaching questions only, need be proved to impeach him. The mere opinion of a non-expert as to mental condition, without the facts on which it is based, or the opinion of an expert even, founded on personal observation, without proof of his opportunities for making the same, is inadmissible. The conduct of a party, and what he did or said at a given time, are competent evidence on the issue as to whether or not he was intoxicated at such time. Where evidence offered and admitted against objection, on a criminal trial, which so far as the record shows, was equally applicable to either of two purposes, one proper and the other not, this court will presume on appeal that it related to the former," and was properly admitted. Conviction to a “reasonable and moral certainty” excludes reasonable doubt. A definition of the “deliberate use of a deadly weapon” under subdiv. 1 of sec. 765 of the civil code, as “an intentional u§e, a use thatis the result of a resolution, purpose or design, formed in the mind and reflected upon, and not done in self-defense,” is correct, and sufficiently explicit.</p>

<p>Grand Jury.—Under a statute which provides that “no person other than the district attorney can be allowed to be present during the sittings of the grand jury,” it is improper, although authorized by such district attorney, for a stranger to be present during the sittings of the grand jury for the purpose of aiding them in the examination of witnesses, but such irregularity after trial and verdict, and without any suggestion of injustice or unfairness to the prisoner, is not a sufficient ground for reversal.</p> <p>Experiments, to furnish data for certain inferences, must be based as nearly as possible upon conditions and circumstances like those existing in the case at trial; otherwise, their tendency is to mislead and confuse the jury.</p> <p>Experiments made upon paste boards with the gun with which the deceased was killed, by non-professional witnesses, to show powder burns, for the purpose of establishing by inference that the deceased came to his death from the effect of a near gun-shot wound; Held, Inadmissible.</p> <p>Experts—Gunshot Wounds.—When the killing is not susceptible of direct proof, and the fact in issue, whether the ball was fired near or from the distance, depends for a correct determination upon the appearances of the wound, that fact and its experienced consequences, does not belong to the ordinary information of men, but lies exclusively within the limits of a particular department of medical science, and requires to be proved by persons skilled in it, the better to enable the jury to reach a correct conclusion.</p> <p>Witnesses—Non-pbopessionaIí.-—It cannot be considered safe to permit nonprofessional witnesses to prove, through the instrumentality of experiments, matters not within the range of their observation and experience, and with which they are presumed to be incompetent to deal. But even if it can be considered as a matter of doubt whether such evidence was proper, or otherwise, we should feel bound in favorem vitae that in this ease it was inadmissible as it was pressed by the state as of vital consequence.</p> <p>Cabelessness— Death bkom.—The general rule is that a party whose negligence causes the death of another is responsible, whether the business in which he was engaged was legal or illegal. If the business was of such a character as to be felonious, the offense is murder, but where it is perfectly legal, negligence in the discharge of it, when producing homicide, is manslaughter. To this rule, there may be exceptions, as where an act, careless in itself, is committed with fatal results, under circumstances or at a place from which it might be reasonably inferred that no injury could happen from the carelessness of the party acting.</p>

<p>Deed—Mortgage.—The only safe criterion in determining whether a transaction was intended as an absolute sale or a mortgage to secure the payment of a debt, is the intention of the parties; and this necessarily requires evidence of the situation of the parties, of the price fixed in connection with the value of the property, the conduct of the parties before and after, and all the surrounding facts and circumstances so far as they are adpated to explain the real character of the transaction.</p> <p>Idem.—Evidence of these circumstances and relations is admitted, not for the purpose of contradicting or varying the deed, but to establish an equity superior to its terms.</p> <p>Idem—Construction oe Deed and Mortgage.—As a consequence of this doctrine, each case must be scrutinized and judged by its own special facts; and when the result of the evidence is to produce doubt, the courts incline to construe the transaction to be a mortgage.</p> <p>Debt.—It seems to be clear, upon admitted principles of law, that on the payment by H. & A. to L. & T. of the money due from S. to L. & T., S. became the debtor of H. & A. for that amount, as it was paid at his request and for his benefit.</p> <p>Idem.—The fact that no note or other personal obligation was given, is not conclusive of the nature of the transaction. A debt may well exist without these, when the whole evidence of it rests in the memory of witnesses.</p> <p>Mortgage—Object oe.—The object of a mortgage is to secure a debt; to effect that purpose, the right of dispositionmust exist some where, and be founded on the contract of the parties either express or implied.</p> <p>Conveyance to Secure Payment oe Money is a Mortgage.—The conveyance of lands for the purpose of securing the payment of a sum of money, if it leaves a right of redemption upon payment of the debt, and if there is a power of sale, whether in the creditor or some third person to whom the conveyance is made for that purpose, it is still in effect a mortgage.</p> <p>Idem—Pacts Determine Character oe Conveyance.—It is always with regard to the actual facts, and not to the form of the transaction, by which equity is governed in determining the real character of the instrument; whether intended as an absolute conveyance, or a'mortgage, it is equally valid, and equity will give effect to it according to the substantial intent of the parties.</p>

<p>Descbtption.—In a contract for conveyance of land, the premises were described as “Lot 8, sec. 19, 4 N., 35 E.,” and it was provided therein tha the purchaser should be “entitled to immediate possession of said lot 8;” Held, In a suit for specific performance, that the contract was no void for uncertainty in the description, and that proof of possession, taken and held, of a lot answering such description, under said agree - ment, was a sufficient identification.</p>

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

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

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

<p>Tide Lauds—Title to—Bights of Soveeeign in.—Where land is submerged by the gradual advance of the sea, the sovereign acquires the title to the part thereby covered with water.</p> <p>Idem—Bights of Abutting Pbopeett Owneb.—The owners of property abutting on tide land may purchase the tide land belonging to the state, and lying in front of the lands owned by them. Sess. Laws 1872, p. 129; Sess. Laws 1874, p. 77; Sess. Laws, 1876, p. 70. And when a patent to the tide lands has been issued to a person fraudulently claiming . to be the owner of abutting property, upon discovery of the patent will be cancelled, and the land conveyed to the owner of the property abutting on the tide land.</p>

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

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

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

<p>Mechanic’s Lien.—Evidence examined and findings sustained.</p>

<p>Appeal.—An appeal lies from an order refusing to dissolve an attachment.</p> <p>Attachment.—Under the statute, a writ of attachment is unauthorized in an action in tort. Whether, if the tort had been waived, and the action brought as for money had been received, an attachment would be authorized in such action, is not decided.</p>

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

<p>A Chattel Mortgage, until it has. been Foreclosed, conveys no Title or interest in the property covered by it, except a mere lien to the mortgagee.</p> <p>Supplemental Proceedings — Attachment—-Chattel Mortgage—Garnishee.—Proceedings supplemental to execution are purely legal, and cannot be used by the judgment creditor for the purpose of enforcing the lien which the judgment debtor has by virtue of a chattel mortgage on the property of the garnishee.</p>

<p>Deed when a Mobtgage—Pabol Evidence.—A deed absolute on its face may be shown by parol evidence to have been intended as a mortgage. Such evidence must be clear and satisfactory, and sufficient to overcome the presumption that the instrument is what it purports to be.</p> <p>Evidence Reviewed, and the Deed in Question held not to be a mortgage.</p>

<p>Instruction not Based on Evidence.—Where an instruction is based upon a state of facts not warranted by the evidence, the manifest tendency of which is, from the special features of the ease, to lead the jury to infer the existence of such facts, and thereby take an erroneous view of the case, it is ground for reversal, although such instruction may be correct as an abstract proposition of law.</p> <p>Idem—Master and Servant—Negligence.—In an action to enforce an employer’s liability for an injury occasioned to an employee, through the employer’s failure to exercise ordinary care in supplying suitable appliances for the work to be done, an instruction as to the liability of the defendant for not exercising ordinary care in the selection and employment of proper fellow servants is erroneous, where no question in regard to such liability is raised by the pleadings or evidence.</p> <p>Idem—Common Employment—Vice-Principal.'—A master is not liable to a servant for an injury occasioned by a fellow servant engaged in a common employment. He is liable, however, for an injury to a servant occasioned by the negligence of a vice-principal, to whom he has committed the substantial control of the business and the power to do all acts necessary to its conduct.</p> <p>Idem—The Foreman op a Gang op Laborers engaged in erecting a shed under the direction of' a superior, is a fellow servant with the rest of such laborers, and if an injury happens to one of them through the negligence of such foreman, their principal is not liable.</p>

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

<p>Wife’s Liability fob Goods Sold fob Family Use.—A wife cannot be held liable, under section 10 of the act of 1878, in an ordinary action for goods sold and delivered, when su.'h goods were sold upon the order of the husband, although the same were devoted to family use.</p>

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

<p>Jurisdiction of Justice’s Court—Service of Summons.—A justice’s court has jurisdiction, without regard to the residence of the parties, when personal service of the summons is made on the defendant in any precinct in the county, although such precinct is not the one in which the action is brought. Such service may be made by the constable of the precinct in which the action is brought.</p>

<p>■Wabehottseman’s Beoeipt, Tbansfeb of.—In the absence of statutory enactment, a warehouseman’s receipt is not a negotiable instrument, and an assignment thereof operates merely as a transfer of the property deposited, and passes no better title to the purchaser than the vendor had.</p>

<p>Decaabations of Agent—Heabsay Evidence.—Where issue is joined as to the price for which certain flour was sold, evidence obtained by the party making the sale, from the declarations of his agent, is inadmissible in his own behalf. Such evidence is hearsay.</p>

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

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

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

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

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

<p>The ceuel treatment which lays the foundation for a divorce must be unmerited and unprovoked, or wholly disproportionate to the provocation.</p> <p>The policy of the law is to sustain the marriage relation, and courts of equity will not lend their aid to effect its dissolution except upon clear proof of the charge preferred.</p>

<p>Administbatoes—Accounts Must be Settled in Countt Court.—No action can be maintained on an administrator’s bond until after a final settlement of bis accounts in the county court. His removal for misconduct, before tbe estate has been fully administered, does not obviate tbe necessity of such settlement before a resort to an action upon bis bond for alleged delinquencies while in office.</p>

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

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

<p>Inpbingement op Title.—“The New Northwest” is the title of a newspaper which has been published in the city of Portland since May, 1871. In January, 1883, the defendant began the publication of a newspaper in said city called “The Northwest News.” Intentional fraud was not alleged. Held, that the exclusive right of the plaintiff to the title, “The New Northwest” was not infringed by the title “The Northwest News, ” adopted for defendant’s paper.</p>

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

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

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

<p>Wheee T. E., for a valuable consideration, promised J. E. te pay his debts to certain third parties, T. • E. cannot be made liable to creditors of J. E. by process of garnishment served after his contract with J. E. while such contract continues unexecuted and in force.</p>

<p>Appeal' from Union County.</p>

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

<p>Peeeies, Jubisdiction oe County Couet to Establish.—The primary object of the statute conferring jurisdiction upon the county courts to establish roads and license ferries for the transportation of persons and property across streams, which obstruct land travel using public ways, is to secure the public accommodation. Eor the attainment of this end, but as subordinate to it, when a ferry franchise is granted, the right to take lawful tolls is conferred as an equivalent for the obligations to accommodate the traveling public. Although the taking of such tolls is privati juris, and incident to the franchise, a ferry is publica juris and cannot be created without a license, and is a thing of public interest and use. It can only exist in connection with some highway or place where the public have rights. The grant of a ferry franchise over a stream, to and from a place where there is no highway, or in which the public have no rights, would be void and inoperative.</p> <p>Idem—Peivibeges Gbanted by License.—When the county court has exercised its jurisdiction by granting a license for a ferry, and a ferry is established, forming a connecting link in the public highway, it has exhausted its jurisdiction as to such highway or places connected, while such franchise exists. Such franchise gives to the person licensed the exclusive privilege of transporting all persons and property between such places. The county court cannot establish another ferry between such places or highways, or between places just outside of or beyond them, designed to accommodate the same traveling public, without violating the exclusive privileges secured by the franchises granted to the ferry already established.</p> <p>Sabe oe Peeby License.—Whether a ferry license can be assigned without the consent of the granting power, and whether the county court granting the license has power to give such consent, quiere. If such assignment is void, the right to object to the same, and to the exercise of the franchise by a party to whom it was not originally granted, can only be exercised by the state officers in an appropriate proceeding.</p>

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

<p>The Demveby of a written contract not under seal may be shown to have been conditional by parol evidence.</p> <p>A meee Powee to sell real property and receive all the proceeds above a certain sum as commission, is not a power coupled with an interest.</p> <p>A Tendee and payment into court only admit the cause of action as to the sum tendered, and do not affect the defense of the party making the same, to the recovery of any greater sum upon the same cause.</p>

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

<p>A Pabtnekship is a contract of two or more competent persons to place their money, effects, labor and skill, or some, or all of them in lawful commerce or business, and to divide the profits and bear the loss in certain proportion. Mere community of interest is not sufficient, but there must be an agreement to share in the profits and loss; and such profits must be shared as the result oi the adventure or enterprise in which both are interested, and not simply as a measure of compensation.</p> <p>The existence of a partnership does not depend upon the fact that each partner has in all things complied with his agreement. If the contract has been made, property and labor contributed, and the partnership business commenced, there is a partnership until legally dissolved.</p>

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

<p>The constitution of Oregon, art. 5, sec. 8, provides that, “In case of the removal of the governor from office, or of his death, resignation, or inability to discharge the duties of the office, the same shall devolve on the secretary of state.”</p> <p>The goveenoe resigned, and the secretary of state entered on the discharge of the duties of the office of governor, and continued to discharge such duties after he cased to he secretary of state, and until the governor next succeeding entered into the office. Held, That he was entitled to the salary of the office of governor the whole time.</p>

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

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

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

<p>Insanity.—Upon the plea of insanity, if it appear that the accused, although suffering from mental derangement, has capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he did; that he had a knowledge and consciousness that it was wrong and criminal, and would subject him to punishment, the defense will fail.</p> <p>Idem.—The defense of insanity, under the laws of this State, will be of no avail unless it is proven beyond a reasonable doubt that the accused, at the time of the commission of the act, labored under a diseased state of mind, and that it was so excessive that it overwhelmed his reason, conscience and judgment.</p>

<p>Poweb of City Oounoix,—Assessment—TJi,tba Vibes.—The city charter of East Portland provides that the recorder “ shall make a list of all the taxable property within the limits of the city, which list shall be taken from the assessment roll for Multnomah county; said list, when so made out, to be certified and delivered by him to the committee on ways and means of the common council. After said roll has been equalized, and the tax levied by the council, he shall apportion the taxes upon the assessment roll, and deliver the same to the city treasurer. He shall have power and authority to add to such assessment at any time before delivering the same to the treasurer, any property which may have been omitted from said list. Any person feeling himself aggrieved by such assessment, may apply in writing to the council to have such assessment revised, and if the council deem the same erroneous, they must correct it.” Held,</p> <p>1. That these provisions, in effect, make the assessment roll of Multnomah county of the taxable property within the city limits, after the same has been copied by the recorder and acted upon by the council, the assessment roll of said city.</p> <p>2. That the power of the council .is limited to the equalization of the assessments in said roll and the levy of a tax to meet the expenses of the city.</p> <p>3. That the action of the council in raising all the assessments contained in such roll a uniform per cent., was beyond their authority, and void.</p> <p>'i. But semble, such action does not vitiate the assessment as made by the proper officer from the county assessment roll.</p> <p>5. An injunction will be granted to restrain the collection of the tax levied upon such excessive valuation.</p>

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

<p>Pasties—Considebation.—A promise made for the benefit of a third person who thereby becomes the real party in interest, will support an action by such third person under sec. 27, p. 110, Gen. Laws of Oregon, though such promise be under seal.</p> <p>Covenant.—In a covenant with B, C and D to indemnify them against liability on a bond, wherein they are bound jointly and severally, the covenant will follow the bond and be, also, joint and several.</p>

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

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

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

<p>Evidence—Heabsay.—W. having a judgment against B., garnished a debt due B. from R., whereupon, as is alleged, R. gave a note to W. for the amount of the debt. In an action thereon by W. against R., the latter having denied the execution of the note, plaintiff offered to prove that he authorized his attorney, Y., to take the note, and was then asked, “What report did Y. make to you under this authority?” Held, The evidence called for was hearsay and inadmissible.</p>

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

<p>Attorneys—Misconduct oe.—Every court has inherent power to strike the name of an attorney from its roll for fraud or corruption in his professional character or employment, or violation of the obvious rules of common honesty. Although the offeuse charged be indictable and the accused have not been convicted or prosecuted thereon, the court will not on that account refuse to exercise its summary jurisdiction to disbar an attorney in a proper case.</p> <p>Practice—Verification.—When in the judgment of the court the answer to a charge against an attorney might subject him to a prosecution for a felony, the verification to such answer may be omitted.</p> <p>Jurisdiction—Extent of.—Upon a charge against an attorney for misconduct, although involving matter for which he might be indicted, the inquiry is directed to the truth of the accusation only so far as it affects his character for trustworthiness or want of integrity. The jurisdiction acts upon the officer, or the facts which show him unfit to hold such office, and is exercised for the protection of the court.</p>

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

<p>Judgment upon Pleadings.—Whether under the code a court is authorized to give judgment on the pleadings quaere, except when an answer contains new matter constituting a defense or counter-claim to which the plaintiff fails to reply.</p> <p>Practice—Error, when Waived.—Defendant asked leave to file an amended answer, which he produced on the hearing of his motion. Leave was denied, and defendant thereupon filed a second answer, omitting the matter objected to in the first. Held, That though it was error to reject the first answer, defendant waived his right to object, by filing the second.</p> <p>Amendments.—The power of the circuit courts over amendments is discretionary, and their action thereon is subject to review in this court only when there has been an abuse of such discretion.</p> <p>Reasonable Attorney Pee.—When in an action upon a note stipulating for the payment of a reasonable attorney fee in case of suit, the answer denies that the amount claimed in the complaint is reasonable, an issue is thus raised, which must be tried either by the court or a jury.</p>

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

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

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

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

<p>Appeal from "Washington County.</p>

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

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

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