Volume 12 — Oregon Reports

<p>Deed—Defective Aoknowiedgment—Equitable Title—Covenant, Effect of. —Where A, B, and C jointly occupying a tract of land, and claiming to be proprietors thereof, the title to which is in the Unite. States, join in a deed, by which they release, confirm, and quit claim to one of their number, B, a designated part thereof, and such deed contains covenants to warrant and defend against all persons, except the United States, and for further assurance, hut was not so attested as to entitle it to record, and afterward A obtained a patent for said tract, held, that B or his grantees thereby became the equitable owners of such land, against all persons having knowledge or notice of their rights.</p> <p>Quit-Claim Deed—Pbioe Equities.—A, after obtaining the patent, conveyed and quit claimed to D “all his right, title', and interest” in said tract. Such deed passed only such an estate as the grantor had a legal right to convey by deed of bargain and sale, and D took subject to B’s prior equities in the land.</p> <p>Conveyance Unbecobded—Judgment Lien—Pbioehies—Notice.—A conveyance of real property in this State is void as against the lien of a judgment, unless such conveyance be recorded at the time of docketing such judgment, or Within the time after its execution provided by law as between conveyances for the same real property; hut such lien would not prevail over a prior unrecorded conveyance, unless it also appeared that the lien was taken or acquired in good faith, without knowledge or notice of such prior unrecorded conveyance.</p> <p>Quit-Claim Deed — Notice.—The fact that a vendor holds only under a deed of quit-claim and release is sufficient notice to a vendee to put him upon inquiry as to the true state of the title.</p> <p>Refekee—Osad Evidence—Documents.—A referee to take testimony is appointed only to take oral proofs in the ease. Written documents, especially when proved by being authenticated as provided by statute, may be put in evidence at the hearing.</p> <p>Statute of Limitations—Oonstbuction of Statute—Suits Between Donation Claimants.—The limitation of five years within which to commence suit in the cases specified in section 378 of the Civil Code, was intended to apply only to controversies arising under section 501 between rival claimants to the same tract as patentees of the State or the United States.</p> <p>[Note—Lord, J., stated orally that he concurred in what was said of the possession of the respondent. He had constructive possession of the property in controversy by virtue of his deed, and it was this possession which barred the right of the appellant under section 378 of the Code. The position of the appellant is that neither the respondent nor his grantors ever held such possession as would limit the right of the former to commence suit under section 378, or to plead it as a defense. This position was untenable.</p> <p>With him concurred Waldo, C. J.—Bep.]</p>

Multnomah County. Plaintiff appeals. Slander for an alleged false and malicious utterance and publication concerning appellant of the words “she is a thief.” The words were alleged in the complaint to have been spoken on the 5th day of July, 1883, and the court refused to permit evidence to be given that they were spoken at any time other than as alleged. This is alleged as error.

Multnomah County. Both parties appeal. . On the 4th day of December, 1882, B. B. Wilson and J. B. Montgomery filed their petition with proof of notice in the county court of Multnomah County, for a ferry license between Portland and Albina, across the Willamette Biver, alleging, amongst other reasons, that the present facilities for crossing said river at or anywhere near said points are limited and of small capacity, and particularly insufficient in respect to the landings…

<p>Multnomah County. Plaintiff appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Express Company—Modification of Contract a Question for the Jury. — A package of money was delivered to tbe Northern Pacific Express Co. for transportation, addressed to the “Northern Pacific Express Company, Ainsworth, W. T.” Subsequently the address was changed by inserting the word “agent” before the word “ northern.” The money was lost, and in an action therefor, held, that whether such change resulted from a modification of the contract of ’ • carriage was a question for the jury.</p> <p>Id. — Carrier and Consignee — Delivery to Consignee. — An express company-cannot be at the same time both consignee and carrier. Nor is such a company relieved of its liability as a carrier until it has made a personal delivery or tender of the article conveyed to the consignee, if he can he found.</p> <p>Id.—Delivery to Agent of Carrier. — Where goods are consigned toan owner in care of an agent of the carrier, it seems that delivery to the agent will exonerate the carrier. But such rule stands upon the ground of a tacit understanding between the parties.</p> <p>Freight Beceiet—Condition—Waiver.—A condition in an express receipt, that the company shall in no case be liable for loss or damage unless the claim thereof shall be presented in writing within ninety days after date of receipt, is . waived by the company in not exacting a compliance therewith.</p> <p>Practice—Nonsuit—Waiver of Error. — Where a plaintiff has not proved a cause sufficient to he submitted to a jury, yet the defendant after a motion .for a nonsuit was made and overruled went into his defense, and supplied the plaint- ■ iff’s defective evidence, the appellate court will not review the ruling on the motion.</p> <p>Evidence—Admission.—A printed notice signed by the superintendent of the ■ company, offering a reward for the recovery of the goods, and which had been posted in conspicuous places, is competent evidence as an admission of liability on the part of the company.</p> <p>In.—Peoon on Agency.—It is not error in such a case to permit the agent who received the money to testify as to what capacity and for whom he was acting in the receipt of the money in question.</p>

<p>Contract—Consideration—Guabantv.—B. and S., copartners, being indebted 'to plaintifis, entered into a contract providing that “whereas, S. has this day sold and transferred to B.” his interest in the partnership business, “ and is to assume and pay all indebtedness of the firm of B. and S., and indemnify S. against said liabilities; therefore, we, B., B., and W., in consideration of the premises, hereby guaranty the performance of the conditions of said contract on behalf of said B., and undertake to indemnify said S. against said liabilities; held, that the undertaking of said guarantors B. and W. was valid and upon sufficient consideration.</p> <p>Id.—Sam.—The promise to indemnify was as much a part of the consideration of the sale as the promise to pay the indebtedness, and until indemnity was furnished, the sale was incomplete.</p>

<p>Conversión of Money.—‘When one person obtains possession of money which ex cequo et tono belongs to another, the latter may maintain an action to recover it,.</p>

<p>Equity—Pabob Ageeement fob Sabe of Lands—Specific Peefobiiance of.— To authorize equity to interfere and enforce specific performance of a parol agreement for the sale of land upon the ground of part performance, it must he •clear, certain, definite, just, reasonable, and mutual in all its parts, containing all the elements of a binding obligation, except the written memorandum required by statute.</p> <p>Id.—Peoof Bequieed To take such a contract out of the statute, the evidence must show the quantity of the land, define its boundaries, and fix the consideration.</p> <p>Id.—Assignee.—The rule as to certainty and precision in the terms of the contract is enforced with more stringency against assignees and representatives than between the original parties.</p>

<p>Attoenies—Admission of Women to Fbaohoe.—Under existing laws, courts of this State have no power to license women to practice law.</p>

<p>Lane County. Defendant appeals.</p>

Lane County. Defendant appeals; This was an indictment charging the appellant with knowingly uttering, etc., to one S. H. Friendly, a forged note, purporting to be the note of J. V. Thornton.

<p>Lane County. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Marion County. Plaintiffs appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Practice—Judgment Non-obstante—Appeal.—When ii is claimed that a pleading does not state a cause of action or defense, as the case may be, and such objection is not raised till the trial, the party so objecting should be compelled to resort to a motion for judgment, notwithstanding the verdict, in case one were rendered against him, as the party interposing the pleading ought, when it has not been demurred to, to be entitled to the presumptions such a verdict would afford; but where the pleading is so defective that no valid judgment could be rendered upon it, and judgment has gone against the party filing such pleading, this court will not reverse such judgment because a different course was adopted.</p> <p>Pleading—Pbaudulent Representations.—In a defense upon the ground of fraudulent representations, it is not sufficient to aver that the representations were false, but the pleader must show wherein they were false. In such cases, facts, not conclusions, must be alleged.</p>

<p>Multnomah County. M. A. and Nathan Hackett appeal.</p> <p>The facts so far as material are stated in the opinion.</p>

<p>Curry County. Defendant appeals.</p>

<p>Linn County. Plaintiffs appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Recovery of Peksonal Pbopebty,—Apstdavit poe—Jurisdiction.—In an action for the recovery of personal property, the affidavit prescribed in section 131 of the Civil Code is the foundation of jurisdiction to order an immediate delivery of the property.</p> <p>Id.—Justice’s Court—Replevin Bond—Sureties, Liability on. — When such affidavit is sufficient in form and substance in an action in a Justice’s Court, the fact that the direction to the sheriff indorsed thereon was signed by the plaintiff instead of by the justice will not exonerate the plaintiff’s sureties from liability on their bond.</p>

<p>Injtjmction—Waste.—A suit will lie for an injunction to stay waste, threatened or being committed.</p>

<p>New Teial— Discretion — Appeal.—Amotion for a new trial upon the ground of the insufficiency of. the evidence to justify the verdict is addressed to the sound discretion of the court in which it is made, and cannot be reviewed on appeal.</p> <p>Evidence — ImpEAOHma Witness—Hostile Deolabations.—There is no difference in principle between admitting declarations of hostility of a witness, for the purpose of affecting the value of his testimony, and admitting contradictory, statements for the same purpose. •</p> <p>Id.—Declarations of Party as to Physical Condition. — The declarations of a party are received to prove his physical condition and symptoms, whether arising from sickness or injury.</p> <p>Criminal Law—Indictment—Plea of Not Guilty—Charge to the Juey.— The plea of not guilty puts in issue every material allegation in an indictment. An instruction that “ the State has fully established ” the fact of the killing, and that “ the only material allegation about which there is any dispute is that which charges these defendants with having purposely and of. deliberate and premeditated malice caused the death of,” etc., is error. The killing of deceased by the defendants must be found by the jury before the question of premeditation or malice could arise.</p>

<p>Finn County. Plaintiff appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Actions and Sums.—In this State, the distinction between actions at law and suits has not been abolished.</p> <p>Id. — CoturrEE-CLAiai.—A counter-claim to a suit must be one upon which a suit might ba maintained by the defendant against the plaintiff. An unliquidated demand triable before a jury, and bearing no relation to the subject of the suit, cannot be used as a set-off to a suit in equity.</p>

<p>Josephine County. Appeal by Jesse Adams.</p>

Washington County. Plaintiff appeals. Thayer, J., having been an attorney in the case, did not sit. The court being equally divided in opinion, the case stands affirmed under the statute. The facts are stated in the opinion.

<p>Coos County. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Marion County. Defendants appeal.-</p> <p>The facts sufficiently appear in the opinion.</p>

Douglas County. Defendant appeals. This cause was before this court at the March term, 1883„ when it was reversed and remanded for further proceedings. At the next ensuing term of the Circuit Court, the plaintiff filed an-amended compliant. Defendant filed a second amended answer, denying the material allegations of the complaint, and setting-up as new matter several counter-claims.

<p>Appeal—Pbaotioe—Undebtakiuu.—Where an undertaking on appeal is filed before the notice of appeal is served, the appeal may be dismissed on motion. But when it appears that such undertaking was so filed in consequence of an excusable mistake, a cross-motion for-leave to file an amended undertaking may be allowed upon proper terms.</p>

<p>Mabkekd Women—Poweb to Contkaot—Family Expense. —The effect.of the act regulating the rights and liabilities of married women (approved October 21, 1878) was to enable her to contract and incur liabilities, and such contracts and liabilities may be enforced the same as if she were unmarried. Por family expenses she may bo sued jointly with her husband, or separately, and a personal judgment rendered against her.</p> <p>Remedies—Legal Rights—Jubisdiction at Law.—When a right is of such a character that a court of law is authorized to take cognizance of it, and to afford a plain, adequate, and complete remedy, the general principle is that the plaintiff must enforce his right at law.</p> <p>Id.—Equitable Jubibdiction.—But when a court of equity originally had jurisdiction in any class of cases for which the proceeding at common law did not then afford an adequate remedy, such jurisdiction will not be lost by reason of subsequent legislation conferring on courts of law authority to decide such cases, unless there are negative words excluding the jurisdiction of equity.</p> <p>Id.—When a court of equity has taken jurisdiction for one purpose, it will generally retain the case until the whole subject is disposed of; but the primary and original object of the suit must in such case be clearly within its jurisdiction</p>

<p>Multnomah County. Defendants appeal.</p>

Multnomah County. Defendant appeals. The respondent alleged in his complaint in substance that the appellant, on the 29th day of December, 1883, wrongfully and maliciously went before a justice of the peace of said county, and without probable cause charged him with the crime of embezzlement, and of converting $113, and procured a warrant for his arrest upon said charge, and wrongfully, unlawfully, and maliciously, and without any probable cause, went to the residence of the…

<p>Klamath County. ^Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Mantón County. Defendants appeal;</p> <p>The facts are stated in the opinion.</p>

<p>Baker County. Defendants appeal.</p> <p>The facts sufficiently appear in the opinion.</p>

Multhomah Cotnmr. Plaintiff appeals. Ejectment. The complaint is in the usual form. The answer consists simply of denials and a plea of the Statute, of Limitations.

<p>Multnomah County. Anthony Moore and Levi Estes each appeal.</p>

<p>Multnomah County. Defendant Levi Knott appeals.</p>

<p>Trover—Conversion of Shares of Stock.—Trover will lie for the conversion of shares of the capital stock of a corporation.</p> <p>Conversion—What is.—Any interference subversive of the right of the owner of personal property to enjoy and control it is a conversion.</p>

<p>Complaint— Cause of Action.—A complaint which alleges that defendants employed G. and B. to perform services, for which they promised to pay said G. and B. 81,000; that G. and B. for a valuable consideration assigned said claim to the plaintiff, does not state a cause of action, in failing to allege that such services were performed.</p> <p>Defective Pleading—When Aided ey Vebdict.—The verdict does not supply any fact omitted from a pleading, but it establishes every reasonable inference that can be drawn therefrom.</p>

<p>Obiiiot.&Xi Convebsation—Evidence oe the Mabbiage. —In an action of criminal conversation the marriage may be proved by the testimony of eye-witnesses or the parties themselves. The certificate of the marriage is not essential. Evidence—Nonsuit.—Where incompetent evidence is admitted without objection in the course of a trial, the court will treat it as competent on motion for nonsuit.</p> <p>Id.—Gist of Aohon—Effect on Relation of Parties.—The gist of the action is not alone loss of service but of the society and comfort of the wife; the plaintiff had a right to show the terms upon which he and his wife lived together, and the practical consequences to their married life from the injury alleged.</p>

<p>Assault and Battery —- Justutoation — Pleading. — In an action for assault and battery, justification, to be available as a defense, must be specially pleaded.</p>

<p>Foemee Judgment—Res Judicata. — A former judgment is final and conclusive between tlie parties, not only as to the matter actually determined, but as to every other matter which the parties might have litigated and had decided as incident to, or essentially connected with, the subject-matter of the original action, either as a matter of claim or defense.</p> <p>In.—Default.—A judgment by default is attended with the same legal consequences (by way of estoppel) as if there had been a verdict for the plaintiff.</p> <p>V/atee Rights.—A former decree for want of answer having established the defendant’s right to divert the waters of Bear Creek through the ditch in controversy, that'right cannot be again litigated between the same parties.</p>

<p>Multnomah County. Defendant appeals.</p>

<p>SEEomo Pebeoemance—’Covenant Against Encumbeanoes.—Where iu a contract for the sale of real estate the vendor agrees to covenant against encumbrances, specific performance will not he decreed in his favor until all encumbrances on the property shall have been removed, or at least reduced to the amount of the balance of the purchase price.</p>

Grant County. Defendant appeals. The plaintiff, a physician, upon the command of a subpoena issued by the coroner of Grant County, assisted at an inquest held upon the body of one Benj. C. Acock. He claimed for such services $125, which was returned by the coroner as a part of the expenses of the inquest. Thereafter the county court of said county sitting for the transaction of county business allowed on said account $48.20, and disallowed the remainder.

<p>Motion fob New Trial—Exception—Appeal.—No exception can he taken to an order on a motion for a new trial, nor can such order be considered on appeal.</p> <p>Ebbob—Exception—It is not error, simply, but error legally excepted to, that constitutes ground for reversal.</p> <p>Id. —Peactice. —An exception in general terms to an instruction which is correct in point of law cannot avail a party on appeal. The proper mode is to except to the instruction, and ask that the proper instruction be given; or when the instruction is irrelevant, to ask that it be withdrawn.</p> <p>Conteact—Liability of Incoming Pabtneb.—Where E. agreed to deliver cattle to F. and It. at a future time, and the latter were to give their promissory note in payment upon such delivery, and before the time of delivery S. and M. became partners with F. and E. in the agreement, and in pursuance thereof the note was executed in the name of the partnership, S. and M. thereby became liable to K., although K. at the time he took the note did not know they were such partners.</p>

<p>Motion fob New Tbial—Appeal eboíu—Misconduct oe Jubob.—The ruling of the trial court on a motion for a new trial, on the grounds that a juror had drank intoxicating liquors during the trial, and that the evidence was insufficient to justify the verdict, cannot be reviewed on appeal.</p>

<p>Umatilla County. Defendant appeals.</p>

<p>Multnomah County. Defendants Fleckenstein and Meyer appeal.</p>

<p>Pbaotice—Nonsuit.—To authorize the court to nonsuit a plaintiff, there must be such a total failure of proof of a material allegation of the complaint as would require the court to set aside the verdict for want of evidence, if the jury were to find for the plaintiff.</p> <p>Defense—Contibütoby Neoliqenoe.—Contributory negligence is a defense, and must be averred as such. {Walsh v. Or. By. & N. Go. 10 Oreg. 250, distinguished.)</p>

<p>Contract — Mortgage.—The contracts between the parties construed, and held to constitute a mortgage.</p>

<p>Clatsop County. Plaintiffs appeal.</p>

<p>Judgment of Justice’s Court—REotoe.—A Justice’s Court cannot revive a judg= ment so as to make it a lien on real estate.</p> <p>In.—Jurisdiction.—The Circuit Court has jurisdiction to revive a judgment of a Justice’s Court, of which a transcript has heen docketed in the judgment docket of the Circuit Court in accordance with section 53 of the Justice’s Code.</p>

Yamhill County. Defendants appeal. Suit to foreclose a mortgage.

<p>Criminal Law—Evidence—Presumption—Possession oe Stolen Property.— The only presumption of guilt arising from the possession of property recently stolen is one of‘fact and not of law.</p>

<p>Clatsop County. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Evidence.—It is ordinarily proper for courts at nisi prius to permit documents to be offered in evidence provisionally, and afterwards to instruct tbe jury as to their effect. '</p> <p>Statute of Limitations—Codor of Titus—Tax Deed.—Where a defendant claims title by virtue of the Statute of Limitations, and offers in evidence a tax deed to himself, such deed in connection with possession is competent, even if its description of the premises is imperfect, to show.that the defendant was holding under color of title.</p> <p>Verdict—Power of Court Over.—The court has no right to direct the jury to find a designated verdict. Its authority is limited to stating to them “all matters of law which it thought necessary for their information in giving their verdict.”</p>

<p>Wasco County. Plaintiff appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Construction of Covenant.—A covenant in a deed provided “that the said S. F. M. Co. shall be entitled to have the Santiam water which is introduced to Salem by said W. W. M. Co., except the water right heretofore granted to the State of Oregon by contract, divided into two equal parts, and that one half of the same shall flow and be conducted by the race now in use to the premises herein granted to the party of the second part, and the other half thereof shall flow down in the natural channel of Mill Creek, or through such other channel as may be provided; said division of said Santiam water shall be made at or near the dam on the land claim of A. F. Waller and wife, where the race running to the oil mill is taken out of Mill Creek.....And it is further covenanted by and between the parties hereto, their successors and assigns, that the said S. F. M. Co. shall pay one sixth of the expense, or do one sixth of the labor, and furnish one sixth of the material necessary to maintain in full use and repair the head-race and gates on or near the Santiam River, now owned and used by W. W. M. Co. for introducing said Santiam water to Salem; also maintain the darn on said Waller’s claim.” .... Held, that under said covenant, the dam on the Waller claim was to be maintained by the S. K. M. Co. at their own expense.</p> <p>Id. — Injunction—Sum to Partition Water. — An injunction will not be granted against said S. E. M. Co. in favor of the W. W. M. Co., or its representatives, to prevent the construction of a dam by the former at the point indicated, but a suit may be maintained to compel an equal division of the water.</p> <p>[Note. Upon a motion for rehearing of 'this case it was ordered that the complaint he dismissed without prejudice.—Rep.]</p>

Benton County. Plaintiff appeals. The defendant was convicted in the recorder’s court for the city of Corvallis of the violation of an ordinance of that city, and appealed to the Circuit Court for Benton County. That court reversed the judgment of the recorder’s court, and discharged the defendant, whereupon plaintiff appeals to this court.

<p>Evidence—Declarations op Party—Bes Gestíe.—In an action for damages for injuries resulting from ejectment from a railroad train, the declarations of the plaintiff immediately after the event, in the absence of the defendant, narratmg the occurrence, are not part of the res gestee, and cannot be given in evidence.</p> <p>Id.—Ownership of Traxn.—In such an action it is incumbent on the plaintiff to prove, not who was the owner of the train, but who was using it at the time.</p> <p>Exempdabx Damages.—Exemplary damages cannot be recovered of a corporation or other person for the wrongful acts of its servant, even when wilful and malicious, unless the employer directed the doing of the act, or ratified it when done, or unless it is chargeable with gross negligence in the employment or retention of such servant.</p> <p>Id.—Pleading.—In order to recover exemplary damages it must appear from the complaint that the act occasioning the damage was done maliciously, or was the result of wilful misconduct of the defendant, or of that reckless indifference to the rights of others which is equivalent to an intentional violation of them.</p>

<p>Multnomah County. Defendants appeal.</p> <p>The facts are stated in the opinion.-</p>

<p>Multnomah County. Petition to remove assignee. Petitioner appeals.</p> <p>The facts are stated in the opinion.</p>

Marion County. Defendant appeals. Action on a bill of exchange indorsed before maturity, drawn on the defendant July 23, 1883, at nine months, by Fish Bros., of Racine, Wisconsin, and accepted by defendant.

<p>Benton County. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Exemption erom: Execution—Wearing Apparel.—A watch of moderate value may bo exempt from execution as “necessary wearing apparel,” when it is made to appear that the watch and other articles reserved as wearing appai'el do not exceed the amount limited by the statute. But in such case it lies with the party claiming the exemption to prove affirmatively the facts which establish his claim.</p>

<p>Barion County. Both parties appeal.</p>

<p>"Linn County. Plaintiff appeals..</p> <p>The facts are stated in the opinion.</p>

<p>Evidence—Admission not Connected with Thee ob Possession.—In a suit to set aside a deed as in fraud of creditors, evidence of statements and admissions made by the grantor long after the execution of the deed, and unconnected with possession of the property, are immaterial.</p> <p>Judgment—Entby oe, by Cleem, by Deeault — (Waldo, C. J., dissenting).— The statute authorizing the clerk to enter judgment by default or upon confession is not unconstitutional.</p> <p>Constitutional Law.—When a statute has been long recognized as binding, and important affairs of the community have been transacted in accordance with its provisions, it should not he disturbed unless it unequivocally conflicts with the organic law.</p> <p>Ebaudulent Conveyance—Cbeditoes.—When a person who has contracted for the purchase of machinery conveys away his property before such machinery is delivered, his creditor may show that such conveyance was made with intent to defraud him.</p> <p>Id. — Subsequent Cbeditoes.—A subsequent creditor cannot attack such a conveyance except by showing that the grantor, at the time he made it, had in view the creation of such debt, and intended to defraud the creditor thereof.</p> <p>Id.—Ebaudulent Intent—Peesumption.—When the necessary result of a debtor’s act is to place his property beyond the reach of legal process, it may be presumed that it was done with a fraudulent intent; hut when the act is regular and fair upon its face the intent must he gathered from the surroundings.</p> <p>Id.—Voidable Deed may Stand foe Indemnity.—A deed obtained under suspicious or inequitable circumstances, or which is only constructively fraudulent, may he permitted to stand as security for any purpose of reimbursement or indemnity.</p>

<p>Vendoe and Vendee—Eiduoiaey Relation. — Ordinarily, when there is no fiduciary relation between the. parties, and no confidence is reposed by the vendor as to the particular contract, no duty rests on the vendee to disclose facts he may happen to know advantageous to the vendor.</p> <p>Id.—Pbincipal and Agent.—B. S., living in Missouri, appointed!. S., a relative residing in this State, her attorney in fact, to lease lands belonging to her in this State and collect the rents arising therefrom, and relied on him for information as to the condition and value of said lands. Subsequently, B. S. wrote !. S. desiring to sell her said lands, and asking him to make an offer for the land in controversy, and in reply he offered her 56,000 therefor. Prior to the acceptance of such offer, a third person offered !. S. the same sum for a part only of said premises, the latter promising to transmit such offer to the owner, but failing to do so. In a suit to set aside the deed from B. S. to I. S. made upon the acceptance of the latter’s proposition, held, that there was such a relation of trust and confidence between the vendor and vendee as required the latter to transmit such offer to the former before purchasing himself, and that failing to do so the deed to him should be set aside on repayment of the purchase money.</p> <p>[Note.—On a petition for a rehearing on the question of costs the appellant was allowed her disbursements in this court and the Circuit Court.—Rep.]</p>

<p>Mortgage—Begistbahon op.—In this State a mortgage is only a security for a debt or the performance of the acts therein mentioned. But in form it is a conveyance, and as such within the intent of the registry act.</p> <p>Assignment op Mortgage —[Recording op, Unnecessary— (Thayer, J., dissenting). —A mortgage may be assigned without a formal conveyance. Such an assignment is not within the meaning of the registry act, and does not need to bo recordedjto protect the assignee against subsequent purchasers or encumbrancers.</p> <p>EobeciiOsure—Interest Acquired by Purchaser.—The purchaser at a foreclosure sale acquires the right of the mortgagee so far as he has any claim or interest in the premises for the security of his debt, and also so much of the equity of redemption as is not bound by the lien of a junior encumbrancer.</p> <p>Merger in Equity.—Where the owner in whom different estates have united has an interest in keeping them distinct, the intent to keep the estates separate will be implied or presumed, and there will be no merger.</p> <p>Id.—Intervening Estate.—When an outstanding estate intervenes between the several interests uniting in the same person there cannot he a merger.</p> <p>Equity—Foreclosure—Depault—Assignee, when Bound by—Agent—Trustee. —R., the duly authorized agent of a foreign corporation, took a mortgage in his own name as “ manager,” and in fact as trustee for such company. In February, 1881, a prior mortgage on the same premises was forclosed, B. being made a party and making default. In September, 1881, K., being still the agent of the corporation, brought suit in his own name as “ manager ” to forclose the first-named mortgage so far as it affected other lands, recognizing in his hill the fact and the validity of the previous foreclosure. Held, that the corporation was hound by B.’s default in the first foreclosure suit, notwithstanding he had prior thereto formally assigned his said mortgage to said company.</p>

<p>Yendob and Verdee—Gonttbaot of Sat.f,—Desteuction of Peoeeety.—In every contract for the conveyance of property there is an implied condition that the subject-matter of the contract shall be in existence when the time for performance arrives. If it has then ceased to exist, each party is discharged from the contract.</p> <p>•Covenants — Bbeaoh of—Peefobjiance.—Covenants are dependent and concurrent when the act of each party is to be done at the same time. In such ease the party alleging a breach must aver a tender of performance on his part at the stipulated time.</p>

<p>Garnishee—Process—Service—Voluntary Ahpearance.—In garnishment proceedings the order provided for in sections 150 and 160 of the Code of Civil Procedure is process, and must be served on the garnishee personally. Service upon his attorney is insufficient. But when it appears that such garnishee voluntarily appeared in person and by attorney at the hearing upon such order, such appearance is equivalent to personal service.</p> <p>Aeeearance—Notice of.—The formal notice of appearance in a judicial proceeding prescribed in section 520 is unnecessary, unless the right of the attorney to appear is challenged by the adverse party.</p> <p>Nunc Pro Tunc Order.—Semble, that at any time when the rights of third parties have not intervened, a court may so amend its records as to malee them conform to the truth.</p> <p>Gabnishment—Notice oe.—The delivery to a garnishee of a copy of the writ of attachment, together with a notice to the effect that the officer thereby “ attached all debts, property, money, rights, dues, and credits of every nature in his hands or under his control,” is a valid garnishment, and sufficiently specifies the property attached.</p> <p>Id.—Judgment Against—Obdeb oe Sale oe Attached Peopebtv.—The Act of October 25, 1878, authorizing an order of sale of property attached supersedes the previous provisions authorizing the entry of judgment against a garnishee, and is a complete substitute therefor.</p>

<p>Tide Lands.—The term “tide lands” applies to lands covered and uncovered by the ordinary tides, which the State owns by virtue of its sovereignly, and corresponds with the shore or beach, which at common law is that land lying between ordinary high and low water mart.</p> <p>Id. —It must be such land as is alternately covered and left dry by the ordinary flux and reflux of the tides.</p> <p>Id.—Navigable Waters,—Lands adjacent to navigable waters, where the tide flows and reflows, come within the description, but it cannot be'Baid to apply to lands which are covered with water three fourths of the year.</p>

<p>'Pleading—Complaint.—A complaint which alleges that D rented a store to tbe defendant at bis request for ten days, for which defendant promised to pay plaintiff tbe reasonable value, and further alleging tbe reasonable value and non-payment, states a cause of action.</p> <p>Id. — Consideration.—An action can be maintained by A upon a promise by B, on a consideration moving from C,to pay A a sum of money, even though not informed thereof until afterwards.</p>

<p>Action upon an account stated and also upon a promissory-note from defendant to plaintiff which had matured prior to the date of said settlement. The answer admitted the settlement, but alleged payment, and further “that at the date of the account stated of July 31, 1883, the note was-long past due.” On the trial the defendant showed payments of money to the plaintiff exceeding the amount of his demands. The plaintiff being called in rebuttal was asked to “ state whether or not the note in controversy was included in the account stated of July 31, 1883,” and also “was it (the payments above referred to) paid to you on any matters that are included in this suit, or was it on matters outside of this suit.” Both questions were duly objected to as incompetent, and the rulings of the court permitting the witness to answer are alleged as error.</p>

<p>Multnomah County. The garnishee appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Assignment for Benefit of Cbeditobs — Ween Set Aside—Equity. — A general assignment for the benefit of creditors, when made in fraud of the insolvent law, may be set aside in equity; but in such case the creditor must first obtain a. judgment upon his claim, or in some manner secure a lien upon the debtor’s property.</p> <p>Id.—Attachment—Garnishment.—When a debtor attempts to dispose of his property to defraud his creditors, the latter may attach it by taking it from the-debtor, or by garnishment if in the hands of a third party, and this even in case of a general assignment for the benefit of creditors if it be fraudulent.</p> <p>Id.—Equity—Creditor’s Bill— When may be Brought.—In such case the creditor may recover a judgment at law, and after exhausting the ordinary legal remedies to enforce payment, may commence a creditor’s bill to obtain satisfaction of his claim.</p> <p>Id._Auxiliary Jurisdiction. — Equity will lend its aid to prevent an attempted fraud on creditors by means of an insolvent law, but not, ordinarily, until the. legal remedies are exhausted. The jurisdictioniis only auxiliary, except in certain cases where a fund has been set apart in-some manner to the payment of a particular class of debts.</p> <p>Assignment—Claim of Ceeditor—Equity Jurisdiction.—Where an insolvent has made an assignment for the benefit of all his creditors under the» insolvent law of this State, and the claim of a creditor has been presented to the assignee, and allowed under the provision of the act, these facts would entitle the creditor to resort to equity to prevent a fraudulent diversion and misapplication of the fund.</p> <p>In.—Simple Contbact Ceeditobs — (Per Waldo, C. J.).—Simple contract creditors alleging a simple indebtedness to them cannot maintain a suit to set aside a conveyance on the ground of fraud. They, must first establish their claim at law, and exhaust the remedies afforded by a court of law for its collection. This is a condition precedent to the jurisdiction of equity.</p>

<p>Questions of Pact—Vebdiot ov Jury—Ebbor to be Clearly Shown.—When the issue between the parties is mainly one of fact, the court ought not to disturb the finding of the jury, unless it is clearly shown that error was committed at the trial.</p> <p>Witness—Interest—Value oe Testimony.—Whether or not a witness attended the trial in obedience to a subpoena, or whether Ms fees were tendered him, or what distance he traveled to attend, are questions of no importance in determining the value of Ms testimony; and the jury would not be justified in drawing any inference therefrom, aliter, perhaps, as to whether he attended voluntarily.</p> <p>Argument—Limiting Time eoe. — A statute providing that the whole time occupied in the argument of a cause shall not exceed two hours on either side, unless the court for special reasons shall otherwise permit, it is not error for the court against the will of a party to limit the argument to a shorter time. That statute is only a limitation upon the power of the court to extend the time for argument, unless for special reasons.</p> <p>Damages—Contributory Negligence—Instruction to Jury.—In an action for damages to an employee by reason of alleged defects in the machinery of a mill, it is not error to charge that “if the plaintiff knew the position, condition, and character of the macMnery by wMch he was injured, and could reasonably have avoided the danger by approaching the same from the outward revolutions of the gear, and did not do so because he did not tMnk or look, he was guilty of negligence precluding recovery. It was the duty of plaintiff when approaching macMnery about wMch he was employed to both think and look, in order to avoid injury from such machinery, and if you find from the evidence that the injury sustained by plaintiff was received by reason of his' failure to think or look as to what he was doing, he was guilty of such negligence as precludes recovery.”</p> <p>Id.—Ebayee eoe Instbuctions—Eailuke to Instruct.—Where the plaintiff claims that the facts showed an emergency which required such prompt and speedy action as would excuse him in a failure to exercise the same care and forethought that would ordinarily be required of a prudent man under similar circumstances, it is Ms duty to ask for an instruction appropriate to that theory of the ease. Failing to do so it is not error in the court to omit to charge the jury upon that theory.</p> <p>Id.—In every case the true test as to whether a party is chargeable with negligence is, whether the act was such that a man of ordinary prudence would have done it under all the circumstances.</p>