Volume 13 — Oregon Reports

<p>Waste, DEEnnrioir of. — To constitute waste, the injury to real property must he of a permanent character, some unauthorized act of the tenant which does a lasting injury, or tends to destroy its identity.</p> <p>Sahe — Lease.—Astipulation in a lease, that the lessee “may make alterations in the building now on said lands so as to adapt it to other business than that of a livery stable,” does not confer a power to tear down and destroy such building, even though he should erect a better or more expensive one in its place.</p>

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

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

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

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

Clatsop County. Defendants appeal. Where an account has been presented in the regular course of trade, and no objection has been made to it, it becomes thereby a stated account. (Wait’s Actions and Defenses, 194; 1 Story’s Eq. Jur., sec. 526; Freeland v. Heron, 7 Cranch, 147; Terry v. Sickles, 13 Cal. 427; White v. Hampton, 10 Iowa, 238; Murray v. Toland,, 3 Johns. Ch. 569; Stebbins v. Niles, 25 Miss. 267; Philips v. Belden, 2 Edw.

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

Multnomah County. Defendant appeals. The relation of a sheriff to personal property taken upon process of attachment or execution is that of bailee, and he is bound to ordinary diligence in taking care of it. The necessary expenses of taking care of the property is a charge upon the same, and he is entitled to deduct it.

Marion County. Plaintiff appeals. As against a maker of a promissory note or acceptor of a bill of exchange payable at a specific place, it is not necessary for the holder thereof to make demand of payment at such place, as a condition precedent to bringing an action thereon; nor to aver such demand in the complaint, or prove it on the trial. (Moak’s Van Sant. PI.,. 3d ed., 321; Adams v. Hackensack Imp. .Com., 43 Am. Rep... 407.

Multnomah County. Plaintiff appeals. The power to construct or repair a highway does not imply a power to charge the expense of such repair or construction against the owner of the adjacent land, nor authorize the expense of such repair or construction to be imposed as a lien on the abutting land, as may be done in case of the improvement of a street, unless a public highway is to be deemed a street. But a highway is not a street.

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

<p>Code of Criminal Procedure — Legislative Power — Delegation of to Code Commission. — “The Code of Criminal Procedure ” is the title of a law passed in 1864. The printed compilation of 1872 contains under the same title the original act, and also additional sections adopted in 1864 as part of the Miscellaneous Laws. The collocation under the former title of sections taken from the latter act does not change their legal effect. Matter appertaining to one act cannot be transferred to another except by appropriate legislation. And the legislature cannot delegate to a code commission power to amend the laws of the state.</p> <p>Construction op Statute — Repeal by Implication — The act of February 17, 1885, repeals by implication title 1 of chapter 31, Misc. Laws, Comp. 1872.</p> <p>Same — Penalty—Criminal Law. — A penalty for the violation of an act necessarily falls with the repeal of the act. Such a penalty cannot be applied to the violation of a subsequent law upon the same subject, unless expressly or by necessary implication made so to apply.</p> <p>Same — Misdemeanor.—Where an act'is prohibited by law but no penalty is provided, the doing of the act cannot be punished as a misdemeanor.</p> <p>Same — Common-law Oppense. — There are no common-law offenses in this state, and its courts are limited to the trial and punishment of such matters, and such only, as have been specially committed to it.</p>

<p>Relinquishment of Debt — Threats—Undue Influence. — Where by tbe .use of threats and menaces which coerce the will of a creditor of weak mind, a debtor obtains from him the relinquishment of a debt and cancellation of the obligation, .such relinquishment is not valid, whether the creditor was insane or not.</p> <p>Same — Duress.—To constitute duress by threats, it is not necessary that they, should be of such a character as are calculated to operate on a person of-ordinary firmness, and inspire a just fear of injury. It is sufficient that they do in'faet compel the person threatened to do an act which otherwise he would not have done.</p>

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

Multnomah County. Defendants appeal. If the contract sued on was in the nature of a bet or wager, then the promise to pay it to the owner of the winning horse was void, and no action will lie against the appellants. The uniform tendency of the later American decisions is to treat all gaming contracts and all wagers as utterly void.

<p>Verdict — Excessive Damages. — Where the verdict of a jury is excessive, it is the duty of the nisi príus court to set it aside; hut its refusal to do so cannot be reviewed by this court.</p> <p>Appeal — Damages on when, por Delay. — Except when the appellant has abandoned his appeal, damages will not be allowed a respondent unless it very clearly appears that the appeal was merely for the purpose of delay.</p>

Multnomah County. Defendant appeals. It was error to permit the state to ask defendant’s witness, McLaughlin, if he and defendant had not been arrested at one time together for robbery? The effect of this testimony was to put the defendant’s character in evidence, which could only be done in the first instance by the defendant himself.

Multnomah County. Plaintiff appeals. There is a distinction between cases of a contract made by written correspondence and cases where the question is whether or not there is a note or. memorandum of a contract already existing in parol sufficient to take it out of the statute of frauds.

<p>Contract — Statute oe Prauds. — An agreement by a vendee to pay a balance of the purchase price to a stranger to the contract is not within the statute of frauds.</p> <p>Same. — Such an agreement can be enforced by the vendor, and also by such third person, if made for his benefit.</p> <p>Evidence — Ambiguous Entries in A'ccount-books — Parol Testimony.— An entry in a book of accounts, if ambiguous, may be explained by parol, but it cannot be shown to mean something which its language does not import.</p> <p>Appeal — Error—Instruction to Jury. — An erroneous instruction is not cause for reversal where it affirmatively appears that it could not have injured the appellants.</p>

<p>Evidence — Foreign Judgment — Transcript — Authentication.—Where the judge’s certificate to a transcript of a judgment from another state ■does not show that he is the sole judge, or the chief judge or presiding magistrate of the court in which it was rendered, such transcript is not thereby rendered inadmissible in evidence, unless it affirmatively appeal's from the record that such court was composed of more than one judge or magistrate.</p> <p>Same — Date—Clerical Error. — Where such judge’s certificate bears a date anterior to the date' of the attestation by the clerk, but refers to the • latter as then in existence, it will be presumed that the discrepancy is a clerical error, and should be disregarded.</p>

Jackson County. Defendant appeals. A defendant charged with murder ought not to be forced into a trial until he has a fair opportunity to procure his evidence, and more especially so when an unreasoning community are threatening to tear down the jail and mob him. It was error to refuse to postpone.

<p>Equity — Creditor’s Suit. — Judgment.—A suit to reach equitable assets to satisfy a judgment at law usually will not be maintained until the ordinary means allowed by law to enforce collection of the debt have been exhausted.</p> <p>Same — Fraudulent Conveyance. — But when the debtor has clouded the title to real property by an encumbrance or fraudulent transfer of it, the creditor may proceed at once to subject the property to payment of his debt.</p>

<p>Baker County. Defendants-appeal.</p>

Multnomah County. Defendants-appeal. Even admitting that the money in controversy was loaned and was used in the partnership, the partnership is not bound, since the credit was given to the individual member; and the charge of the court in relation thereto was erroneous. (Livingston v. Roosevelt, 4 Johns. 271, 272; S. C., 4 Am. Dec. 273; Jaques v. Marquand, 6 Cow. 502,503; Whitaker v. Brown, 16 Wend. 505; Foot v. Sabin, 19 Johns. 158; S. C., 10 Am.

Wasco County. Defendants appeal. It is unnecessary to the validity of a contract on the part of a corporation that it should be made by a formal vote of the members, or that it should be entered in the minutes of any meeting. But that inference may be ■drawn from corporate acts tending to prove a contract •or promise, as well as in the case of an individual, and a vote is not always necessary to establish such contract or promises.

<p>Deeeot oe Parties — Demurrer—Pleading and Practice. — When it appears upon, the face of the complaint that the presence of other parties is necessary to a complete determination of the controversy, a demurrer will lie for a defect of parties plaintiff or defendant.</p> <p>Same. — Where too many parties are brought in, a demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action, in favor of or against the improper parties, would he the proper remedy.</p> <p>Same — Misjoinder oe Actions — “Multieariousness.”—“Multifariousness ” is a term unknown to the code, but when alleged as a cause of demurrer may he taken to mean that several causes of action have been improperly united.</p> <p>Same — Motion to Strike out Demurrer. — A demurrer cannot he stricken out on motion.</p> <p>Same — Judgment on Demurrer — Election.—When a demurrer to a complaint is sustained on the ground that several causes of action have been improperly united, the complaint is thereby completely overthrown, and the plaintiff can proceed only by filing an amended complaint containing the cause of action which he elects to pursue.</p>

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

<p>Criminal Law — Evidence-Examination of Witness — Bias.—In a criminal case, any question which tends to show a feeling or bias of the witness against the accused is competent. In a capital case, great latitude should be allowed ou cross-examination, especially where the witness belongs to a class whose testimony general experience proves to be unreliable.</p> <p>Same. — Counsel should, be allowed to pursue their own course in eliciting, testimony, so long as they keep within reasonable bounds.</p> <p>SAme. — In a criminal action, testimony that has any possible bearing upon the defendant’s case should not be excluded.</p>

<p>Construction or Statute — Repeal—Tide-land—Shore Owner. — The effect of the repealing clause in the act of October IS, 1878, was to take away from the owners of lands abutting on the shore of rivers or baya within this state, where the tide ebbs and flows, any preferred right then existing and unexercised in them to purchase from the state the unsold tide-lands in front of the property under a previous act (of October 28, 1872, and amendments).</p> <p>Same — Pre-emptive Right. — Owners who, prior to the taking effect of the repealing act, had availed themselves of their preferred right to purchase under the latter acts, and secured title from the state to such tidelands, were not affected by the repeal.</p> <p>Same — Fraudulent Purchase. — Where one not entitled to such pre-emptive right fraudulently purchases the title of the state to such tide-lands, such purchase exhausts the power of sale of the state in such lands, and there remains no power to sell to the person entitled to purchase.</p> <p>Sáme — Suit in Equity. — But in such case a suit by the abutting owner who has been deprived of his right will lie against the fraudulent purchaser, to have his title inure to the benefit of the former.</p> <p>Same^-Statute' oe Limitations. — And this right of suit will not be cut ofi by the repeal of the act conferring the pre-emptive right, but only by the general statute of limitations. Waldo, O. J., dissenting</p>

<p>Appeal — Notice—When Sufficient. — A notice of appeal must be directed to the adverse party, and must inform him that the appellant appeals from the judgment.</p> <p>Same. — The sufficiency of the notice of appeal must appear on its face, and the question whether it is sufficient to give the respondent actual knowledge of the intention of .the appellant to appeal cannot be gone into.</p> <p>Same — Description of Judgment. — The court must be able to identify the judgment from the notice. A notice sufficiently describes the judgment which gives the name of the court in which it was rendered, the names of the parties, and the date of the judgment.</p> <p>Same — Judgment on — Dismissal.—Where a notice of appeal to the circuit court is defective, it is error to render any other judgment than that of dismissal.</p>

Multnomah County. Plaintiff appeals. This suit can bo maintained under the Code, p. 212, sec. 500, or under the general equity doctrines. (Stark v. Starr, 6 Wall. 402; Murphy v. Sears, 11 Or. 127; Cool-i.dge v. Fomuard, Id. 119; Teal v. Collins, 9 Id. 89; Mason v. Ayers, 28 Wis. 612; 1 High on Injunction, sec. 372; 1 Story’s Eq.

<p>Municipai, Corporation — Construction or Powers or — Street Improvement — Tax. —A power conferred upon a municipal corporation to improve the streets and tax the cost thereof upon the adjacent property is a. special and limited' power, which can he exercised only by a strict- observance of every requirement of the act confirming it.</p> <p>Same — Notice or Improvement. — The charter of East Portland provides that when a street is to be improved, the recorder must give a notice of' the same “specifying with convenient certainty the street.or part, of street to be improved, and the kind of improvement to be made, ” and the • published notice of a contemplated street improvement stated that the council proposed to improve a specified part of a street, on which plaintiff’s property abutted, by laying, “where the same may be required,” a plank roadway of full width, with sidewalks, and it appeared that that • part of said street'had been once improved by the city and was in good. condition when the latter improvement was proposed: Held, the notice was insufficient, in-failing definitely-to. express the kind of improvement. to be made.</p> <p>Same — Assessment—Name or Owner. — So where the charter requires that ■ in making an assessment for such an improvement the auditor shall enter-in the docket of city liens the number or letter of the lot assessed, with its proportionate share of the cost, and the name of the owner of the lot, or that the owner is unknown; an entry under the head of “owner,”of “J. C. Hawthorne, Est. of,” when O. Hawthorne was dead at the-time of the entry, is not a compliance with the charter.</p> <p>Same. — A provision in the charter that the auditor may take the certificate - of the county clerk as to who is the owner of the property does not help such aa entry, even though it appear from the records of the county at the date thereof that the owner of the property assessed was J. O. Hawthorne, and that he was deceased.</p> <p>Same. — A tax for street improvements is not against the person, but the property; and to render it valid, the act under which it is levied must be-complied with in terms; when that is done, it becomes a legal charge = upon the property. „ The name of the owner, or that the owner is unknown, is inserted because the statute requires it.</p> <p>Same — Certificate of County Clerk. — Semble that the charter authorizing the auditor to take the certificate of the county clerk as to the ownership of the lot, an assessment, if otherwise regular, would be valid if the auditor took such certificate and entered the name so certified in the docket of city liens, although it was not in fact the name of the true owner.</p> <p>Equity — Equitable Estoppel. When a party encourages the making of an improvement like the one in question,-and from which he derives a benefit, upon the principles of equitable estoppel, he will not be allowed thereafter to question its legality. But this rule applies only where he has by some act consented to the improvement resulting in the assessment.</p>

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

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

Multnomah County. Defendant appeals. A judgment was rendered against the appellant in the Justice’s Court on the third day of August, 1885. On the seventh day of that month, the appellant duly executed an undertaking on appeal therefrom to the said Circuit Court.

Multnomah County. Plaintiffs appeal. The court below found as a. fact that the conveyance from Espey to Thompson was intended as a mortgage to secure advances made by Thompson. The legal title and right of possession under that conveyance both remained in Espey, according to the law of this state.

<p>Navigable Waters — Constitutional Law. — The shores of navigable waters, and the soil under them, were not granted by the constitution to the United States, but were reserved to the states respectively.</p> <p>Same — High-water Mark — Meander Line. — The point to which the water usually rises in an ordinary season of high water is the true meander line, and forms the boundary of the title of the United States.</p> <p>Tide and Overflowed Lands — Construction of Statutes. — The act of October 26, 1874 (to provide for the sale of tide and overflowed lands on the sea-shore and coast), refers only to such tide and overflowed lands as were the subject of sale and could be rendered susceptible of cultivation by reclamation.</p> <p>Statute of Limitations. — By the amendment adopted in 1878, the limita- ■ tion for actions for the recovery of real property was reduced from twenty to ten years, except that where the cause of action had accrued and ten years had expired, or would expire within one year from the approval of the amendment, an action could be brought within one year thereafter. Evidence — Opinion.—Upon a contention as to whether the premises in controversy lay within the boundaries of the Stevens patent, or between them and the river, a question asked a withess, “whether such tract was in the patent to Stevens, or not,” was properly excluded, as calling for an opinion instead of a fact.</p> <p>Prescription — Easement—Payment of Taxes. — A grant of the right will be presumed from the adverse use of a liberty, privilege, or advantage in the land of another for a period equal to the statute of limitations; and payment of taxes on the land by the owner is not inconsistent with the acquisition of such easement.</p>

Multnomah County. Plaintiff appeals. The registry provided for can confer no constitutional right upon the elector, and it is only the evidence of the possession of such right. No act can legally provide that this shall be the only evidence of that right, or that the evidence or proof of the right to vote can only be offered during a limited and arbitrary time, many months or weeks preceding the day when this constitutional right is to be exercised.

<p>Demurrer — Admissions oe. — A demurrer is not an absolute admission of the facts stated in the adverse pleading. Its only office is to raise issues of law upon the facts alleged in the pleading demurred to.</p> <p>Same — Divorce—Construction oe Statute. — A demurrer to a complaint in a suit for divorce is not such an admission of the facts alleged therein as is contemplated by the statutory provision that “when the suit is for any of the causes specified in subdivisions 3, 4, 5, and 6 of section 491, the defendant may admit the charge and show in bar that the suit has not been commenced within one year after the right of suit accrued.</p> <p>Same . — To avail himself of this provision the defendant must admit the charge, not merely for the purpose of ascertaining its legal sufficiency, but as an actual fact.</p>

<p>Measure op Damages — Market Value. — When property having a market value has been destroyed and a recovery in damages is sought, the measure of damages is 'the market value.</p> <p>Same. — But property may have a value for which a recovery may he had. if it is destroyed, although it have no actual market value.</p> <p>Same. — In an action for loss of property which has no market value, other means of valuation must necessarily he resorted to.</p>

<p>Executors and Administrators — Garnishment—Custody or the Law. — - Money, credits, and other property in the hands of administrators and executors in their representation capacity, it seems, are in the custody of the law, and not subject to process of garnishment.</p> <p>Same — Order or Distribution. — When the distributive share of an heir has been ascertained and ordered to be paid by the court, it is no longer in the custody of the law, and thereafter may be garnished in the hands of the administrator or executor.</p> <p>Same — Assignment by Heir — Void Decree — Collateral Attack. — Where the heir has assigned his interest or distributive share, the assignee may notify the executor of his assignment, for the purpose of requiring payment of him, or intercepting payment to the heir after the order of distribution, but is not entitled to a decree that the distributive share of the heir be paid to him. Such a decree, if made, is so far void, and may be attacked collaterally.</p>

<p>Contract — Mistake.—A stranger performing work by mistake upon another’s contract to excavate earth from a street, without the latter’» knowledge, cannot recover the cost thereof.</p>

<p>Common Carrier — Live-stock.—Qucere, whether in the conveyance of livestock the duties and liabilities of the common law attach to the carrier, • or whether, in the absence of a special contract, the carrier is to be regarded as the bailee or special agent for the transportation of such property, bound only to furnisli suitable and safe carriage and motive power, and liable only for defects in these.</p> <p>Same — Special Contract. — Where the carrier does not hold itself out as a common carrier of dogs, nor assume their transportation in that character, but as a matter of accommodation to a passenger who was notified of its rules, permits its servant to receive them in its car, and accept pay for their transportation, such arrangement at most can only charge the carrier as a bailee or private carrier.</p> <p>Same — Pleading—Variance.—Under a complaint charging the defendant as a common carrier, no recovery can be had upon proof of a liability as a private carrier only.</p>

<p>Attachment — Order of Sale of Attached Property — Waiver of Lien. — In an action where property has been attached, the failure of the judgment entity ordering a sale of the attached property to specifically describe it, does not operate as a waiver of the lien of the attachment.</p> <p>Attachment — When Executed — Return of Writ. — It is the duty of a sheriff, receiving a writ of attachment, to execute the same without delay by attaching the property of the defendant. The writ is fully executed when the officer has attached sufficient property to satisfy the plaintiffs’ demand, and costs and expenses; and as soon as that is done, he must return the writ retaining in his hands the property attached. »</p> <p>Same. — It is unnecessary that the writ should remain in the hands of the officer in order to hold the property.</p>

Yamhill County. Defendants appeal. No attorney’s fees can be recovered in this action. (Oelrichs v. Spain, 15 Wall. 211, 231; Patton v. Garrett, 37 Ark. 605.) Where counsel fees are allowed, the recovery is limited to fees paid for procuring a dissolution of the injunction, as distinguished from fees paid for defending the entire case.

Multnomah County. Plaintiff, and defendant, the Bank of Garfield County, appeal. An inspection of the complaints of Bigham and of. Webber & Foster will show the court that they are- not .actions on contract, but in tort for conversion of money, and were actions for the conversion of a species of property for which an action for conversion could be maintained in this state, and was maintained.

<p>Mandamus — Notices oe Elections — Duty or County Clerk. — Under a statute prescribing that the county clerk shall, at least forty days before any general election, make out and deliver to the sheriff of his county notices of election, naming the offices to be filled, etc., the duty thus imposed is imperative, and may be enforced by mandamus.</p> <p>Same — Relator—Real Party in Interest — Public Duty. — Where the question is one of public right, and the object of the mandamm is to procure the enforcement of a public duty, the people are the real party, and the relator need not show that he has any special interest in the result, it being sufficient that as a citizen and voter of the county he has a general interest in the execution of the law.</p> <p>Circuit Judge — Term or Oeetce — 'Vacancy.—The term of office of a circuit judge, under the constitution of this state, is six years, and when a vacancy, occurring within the term is filled by election, the person so elected holds, not for the full period of six years, but only for the remainder of the unexpired term. Waldo, C. J., dissenting.</p>

Multnomah County. Defendant appeals. Equity will not relieve a party from a judgment at law because it is erroneous. (Reeves v. Cooper, 12 N. J. Eq. 225, 226.) Not even if the error appears upon the face of the record. (S. F. Sawings and L. Society -V. Thompson, 34 Cal. 76.) Nor in any case until the applicant has exhausted his legal remedies.

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

<p>Constables — Deputy.—In the absence of statutory provisions upon the subject, it seems a constable may appoint a deputy to perform a particular ministerial service, but he cannot appoint a permanent deputy for the-general discharge of the duties in his office.</p> <p>Same — Service by — Void Judgment. — A judgment rendered by a justice of the peace in a case where there was no appearance and no service except by a person styling himself deputy constable, and where the record discloses no appointment of such deputy to perform said service, is void.</p> <p>Review. — A writ of review lies to vacate such a judgment.</p>

Morrow County. Defendant Cresswell appeals. A complaint must set forth an inclosure, built in substantial compliance with this law, or there can be no trespass of cattle. (Campbell v. Bridwell, .5 Or. 311.).

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

<p>Appeal — Undertaking on — Counter-undertaking—Discharge op Sureties. — Where, on an appeal to this court, the appellant gives an undertaking to stay proceedings, and, the respondent gives a counter-undertaking and attempts to enforce the judgment, the giving of the latter undertaking does not have the effect to discharge the sureties in the former.</p> <p>Same — Consideration.—The consideration for the counter-undertaking Í3 the privilege obtained of enforcing the judgment or decree.</p> <p>Same — Duty op Clerk. — The clerk should certify as to both undertakings when two are given.</p> <p>Same — Judgment against Sureties. — When an undertaking has been given by both appellant and respondent, if the case is affirmed the respondent is entitled to judgment against the sureties on appeal; if reversed, and it has been enforced, the appellant is entitled to judgment of restitution against the sureties in the counter-undertaking; while if it has been enforced, and the judgment is affirmed, the respondent would be entitled only to 'costs of the appeal.</p> <p>Mandate — Power op Appellate Court to Recall. — Whether this court has power to recall or change a mandate after it ha3 been transmitted to the court below, qucere.</p>

<p>Seduction — Action by Parent — Age.—In an action by a father for seduction of his daughter, a complaint stating that the daughter at the time of the alleged seduction was of the age of sixteen years sufficiently alleges that she was under twenty-one.</p> <p>Same — Evidence — Admissions—Letters between Parties. — In such an action, a letter from the daughter to the defendant, and his reply thereto, stand on the footing of conversations between the parties. But in such case, it should satisfactorily appear that the letter was written in good faith.</p>

<p>Appeal prom Justice’s Court — Misdescription or Judgment — Motion to Dismiss. — A notice of appeal from a Justice’s to the Circuit Court describes the judgment appealed from as having been rendered on the twenty-second day of December, when it was in fact rendered on the twenty-second day of November. The respondent appeared, and on his motion the case was continued till the next regular term. Held, that even if the defect were such that he might have taken advantage of it, he waived the right by failing to make the objection.</p>

<p>Corporations — Railway Company — Charter.—A railway company organized under tlie corporation law of this state has no powers other than the statute confers, and such as are incidental to its existence.</p> <p>Same — Lease op Road — Duties to Public. — Unless specially authorized by statute to lease its road, such a corporation cannot, by so doing, defeat its obligations to the public, or escape the liability which the law imposes for torts, although committed by its lessee.</p> <p>Same — Negligence op Construction Company. — Where an incompleted railway in the possession of a construction company employed by the owners was used by the former for purposes of general traffic, and in the course of such use, by the negligence of the employees of such construction company, the plaintiff’s intestate was run over by the cars and killed, an action therefor will lie against the corporation owner, whether such use of the road was by its consent or not.</p>

<p>‘Criminal Law — Witness—Pees and Mileage. — 'A witness attending on tlie trial of a criminal case, in obedience to a subpoena, from a point outside tbe county, and more than thirty miles distant from the place' of trial, is entitled to only two dollars a day, and mileage at the rate of ten cents a mile.</p> <p>■Same — Construction or Statute. — Section 785 of the Civil Code providing for double mileage to witnesses in certain cases does not apply to criminal causes.</p>

Multnomah County. Defendants appeal. To allow these several plaintiffs to join in one suit to set aside the several assignments made by them would be to allow several plaintiffs having several… Held: and vest that title in themselves so that they may be present owners. The cause* of suit against the Oregonian company is to recover their claims out of the property now held by it. Joinder of causes of this kind is not and never was allowable.

Clatsop County. Plaintiff appeals. If the state had a title to the tide-land in front of lot 2, block 112, on and prior to June 17, 1876, then McCann is now the owner of that title, unless he is in some wayestopped from asserting that ownership by some previous act of his grantor.

<p>Appeal from Justice’s Court — Undertaking—When Filed. — A justice of the peace has no power to permit an undertaking on appeal to be filed in a cause after the thirty days allowed for taking an appeal has expired.</p> <p>Same — Justice’s Code — Construction of Statute. — The Justice’s Code on the subject of appeals is complete in itself, and section 527 of the Civil Code does not apply to appeals from a Justice’s Court.</p>

Washington County. Plaintiffs appeal. A co-tenant in possession cannot assert against his co-tenants, either at law nor in equity, a title derived from purchase of the common property at a sale for delinquent taxes. (Sedgwick & Wait on Trial of Title to Land, secs. 291, 292; Cooley on Taxation, 345-347; Freeman on Co-tenancy, sec. 158; Olney v. Sawyer, 54 Cal. 379; Davis v. King, 87 Pa.

<p>Innkeeper — Lien op. — An innkeeper lias a lien upon the property of bis guest, and upon the goods put by the guest into bis possession, as a security for his unpaid charges.</p> <p>Same — Property op Third Persons. — Such lien will attach to the property of third persons in the hands of the guest as bailee, which comes to the hands of the innkeeper by virtue of the innkeeping relation, unless he knew the property was not owned by the guest.</p> <p>Same. — Where a piano, the property of a stranger, was shipped to the defendant in his name, and was at his request, and upon his order, put in ,the possession of an innkeeper, and kept by him as the property of the defendant, his guest, the innkeeper has a lien upon the piano for the unpaid charges of the guest. Thayer, J., dissenting.</p>

Multnomah County. Appeal by surety on undertaking. There is but one mode provided by law for taking appeals from justices’ judgments, and the giving of an undertaking is one step in that mode, and a step which the statute says must be taken. The undertaking must be given in strict conformity with the requirements of the statute, in order to give the appellate court jurisdiction.

<p>Riparian Rights — Watercourse—Boundaries.—Where a stream is meandered in the public surveys, the stream, and not the meander lines, is the true boundary of the riparian proprietor.</p> <p>Same. — Every riparian proprietor is entitled totheuseof the flow of the water in its natural course, and to the momentum-of its fall on his own land. He has no property in the water itself, but a simple usufruct.</p> <p>Same — Use oe Water. — Such use must be reasonably exercised so as not to cause a substantial diminution or waste, and may be for any legal purpose, provided the water is returned to its channel uneorrupted and ■ without essential diminution.</p> <p>Same — Reasonable Use a Question of Fact. — What is a reasonable use is a question of degree, in which the size and capacity of the stream is to be considered.</p> <p>Same — Manufacturer.—A manufacturer has no right to divert the waters of a stream and discharge them into a different channel without the consent of the lower proprietors on the stream, however beneficial his enterprise may be to the public. The necessities of his business cannot be made the standard of another’s rights in a thing which belongs to both.</p> <p>Same — Equity—Injunction.—A riparian proprietor, owning to the center of a stream, is entitled to the aid of equity to prevent a diversion of the waters from their natural channel, and this notwithstanding that he does not himself use the water-power, and has sustained but small pecuniary damage.</p>

Clackamas County. Defendant appeals. This is an action of ejectment brought to recover possession of a strip of land lying along the boundary between the premises of plaintiff and defendant. The facts out of which the action arose are as follows: In 1882, Elizabeth Paddock, being then the owner of the whole tract of land claimed by both parties, sold a portion of the same to Anna M. Dedman, who afterwards conveyed the same to defendant.

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

<p>Usury — The evidence reviewed and found not to establish usury.</p> <p>Same — Right or District Attorney to Intervene. — {Per Thayer, J.) — In a suit between the parties to a contract, the district attorney has no authority, under the statutes of this state against usury, to intervene and claim a forfeiture of the debt upon a charge that the transaction between the parties is usurious. Whether the statute itself is constitutional, qumre.</p> <p>Same — Evidence—Proof on Usury. — A forfeiture of a debt to the school fund for usury in any event can be decreed only upon a judicial inquiry concerning matters alleged in the complaint or averred in the answer or reply, and the proof must be clear, positive, and convincing.</p>

<p>Usury — Conveyance to Delay ok Defraud Creditors. — The evidence reviewed and held not to establish usury, nor that the conveyances from, the respondent to the appellant were made to delay or defraud creditors.</p> <p>Mortgagee in Possession. — The facts and circumstances considered, and the mortgagee in possession held not entitled to special compensation for his care in the management of the mortgaged estate.</p> <p>Same — Pledgee—Sale of Pledge — Trustee.—Where a mortgagee who is in possession of the real estate mortgaged, and also of a large amount of stock of various corporations, and other personal property pledged to him to secure his debt, and is also the assignee from his debtor of shares in a corporation which have been pledged to secure another liability of the debtor, suffers said shares to be sold, and afterwards purchases them on his own credit, but subsequently pays therefor with money derived from the debtor’s estate, he thereby becomes a trustee of such stock for the debtor, subject to the payment of the debt.</p> <p>Tender — Written Offer to Pay — Payment into Court. — The statute providing for a written offer to pay money in lien of a tender is intended simply to dispense with the necessity of actually producing and offering the money, but does not relieve a party from the duty of actually having the money in fact, nor from bringing it into court when the suit is begun, in order to keep his tender good. Waldo, C. J., dissenting.</p>

The common council had no power to pass the ordinance. The only power, if a power there he, is simply to “suppress,” not to punish or imprison, and such power jnust be expressly conferred or it will be held not to exist.

Multnomah County. Plaintiff appeals. The cases decide that where there is an account consisting of debts and credits, a claim for a “balance due” is not sufficient; but here the proof is clear, and the notice itself shows that the claim is not for a balance; but for a certain sum which is wholly due, and in no part paid. In such case, it is not- necessary to set fortli the items of the account. (Gilman v. Card, 29 Ind. 291; Lee y. Burke, 66 Pa.

<p>Conversion — Pleading—Title in Third Person — New Matter. — In an action for the conversion of personal property, an allegation in the answer that the property belongs to a third person is not new matter of defense. It only controverts the allegation of ownership contained in the complaint. It is doubted, however, whether such fact could be proved under a mere denial of plaintiff’s title.</p> <p>Same — Possession as Evidence of Title. — Possession in such action is sufficient evidence of ownership to enable a party to maintain an action against one who interferes with the property without right. But it seems that possession alone is not sufficient to authorize a recovery of the value, unless it be an actual holding under a claim of right.</p> <p>Appeal — Specification of Error in Notice. — A notice of appeal which states in general terms the nature of the objections relied upon, and refers to the bill of exceptions, while not a satisfactory practice, yet specifies the grounds of error with sufficient certainty to be considered in this court.</p> <p>Evidence — Interpreter.—It is not error to permit a person called as a witness to translate a document offered in evidence, which is in a foreign language; nor is it necessary that before doing so he should be sworn as an interpreter.</p> <p>Evidence — Impeachment of Witness — Contradictory Statements. — As a foundation for impeachment, it is competent, on cross-examination, to ask a witness, with particulars of time, place, and circumstance, whether he has not made other specified statements inconsistent with his present testimony.</p> <p>Error — Instruction.—It is not error to refuse an instruction which correctly states the law applicable to a contract in evidence, but ignores the fact that there is evidence of another agreement between the same parties to which a different rule would apply.</p> <p>Conversion oe Personal Property — Title in Third Person. — In an action by K. & Co., claiming title against a sheriff who had levied upon the property in controversy as the property of G., and the sheriff had answered, setting up title in A, a stranger, an instruction that if plaintiff was in possession at the time of the levy, and the title was in A, that fact would not defeat the plaintiff’s right to recover without showing also that the defendant took possession of the property as A’s, and by direction of A, was error. The defense was made out whenever it was shown that A owned the property.</p>

Multnomah County. Defendant appeals. The action for the recovery of specific personal property, recognized by statute in Oregon, depends upon the right of property in the plaintiff and his right to the • immediate possession. Failing in the proof of his right of possession, he fails in his action.

<p>Criminal Law —Municipal Corporations — Complaint — Violation op Ordinance. —-In a prosecution for violation of a city ordinance prior to tlie act of February 25, 1885, it is not sufficient in the complaint merely to refer to the ordinance by its number, but the ordinance should be set out or recited.</p>

<p>Union County. Defendant appeals.</p> <p>The city charter of- Union authorizes the city “ to prevent and restrain any riot, noise, disturbance, or disorderly assemblage in any street, house, or place in the city.” The plaintiff was tried and convicted upon a complaint charging that “ the said J. O. Walsh, within the city of Union, Union County, Oregon, on the eighth day of May, 1884, did then and there draw upon Phillip Halley a dangerous weapon, viz., a revolver or pistol, the same being loaded with lead and powder, and being a dangerous weapon, with intent then and there and thereby to assault and shoot the said Phillip Halley, in violation of city ordinance No. 51 of said city, and in breach of the peace thereof.” Said ordinance No. 51 is as follows: “ Sec. 4. That any person or. persons who shall draw any dangerous or deadly weapon upon the person of another, or who shall exhibit in a threatening or careless manner any such weapon within the corporate limits of Union, shall on conviction thereof before the recorder be fined not less than five nor more than one hundred dollars, or imprisoned for any period not more than twenty days.”</p>

<p>Criminal Law — Charge to the Jury — Intent.—Upon, an indictment under a statute prohibiting the sale of or offering for sale oleomargarine, unless the same shall be plainly marked so as to establish its true character, where the only evidence of an offer to sell was that the defendant, a grocer, kept a small quantity of oleomargarine not marked as such in his salesroom, an instruction to the jury that “ if the defendant kept the article described without any mark plainly distinguishing the same from genuine dairy products, in his common salesroom, with other produce he was dealing in, and publicly exposed and exhibited the same with intent to offer it for sale, then the charge is made out; but you are to pass upon . the question of intent,” etc. — is not erroneous.</p> <p>Same — Intent to Sell. — The exposing of such substance, unmarked, with other pure butter, or groceries, upon the shelves or counter of a salesroom, is an act from which an intent to sell may be inferred in the absence of rebutting evidence, and the instruction given does not preclude him from showing the fact. Thayer, J., dissenting.</p>

<p>Union County. Plaintiff appeals.</p>

<p>Malicious Prosecution — Malice.—Malice, in the enlarged sense of the law, is not restricted to anger, hatred, and revenge, but includes every unlawful and unjustifiable motive. And in an action for malicious prosecution any motive, other than that of simply instituting a prosecution for the purpose of bringing a party to justice, is a malicious motive.</p> <p>Same — Actual and Implied Malice — Question for Jury. — In actions for malicious prosecution, there is no such thing as implied malice, but malice in fact must be proved, and its existence is purely a question of fact for the jury, but such malice may be inferred from any improper or unjustifiable motives which the facts disclose influenced the conduct of the, defendant in instituting the prosecution. And the act itself, with all the surrounding facts and circumstances, may be inquired into for the purpose of ascertaining such motive.</p> <p>Same. — It is not the guilt of the prosecuted, but the intention of the prosecutor, which is the subject of examination in this action.</p> <p>Same — Evidence—Reputation of Plaintiff — Probable Cause. — In an action for malicious prosecution, the defendant may prove the general bad reputation of the plaintiff, both to rebut the proof of want of probable cause, and in mitigation of damages.</p>

<p>Nuisance — Eeeect on Verdict in Actions or — Warrant to Abate.— A verdict for the plaintiff in an action for a nuisance cannot have such conclusive effect as to make the issuance of a warrant for the abatement thereof a matter of course. It may appear to the trial court, from its own knowledge of the evidence in the case, that the nuisance has ceased, or if not, that the remedy by warrant is inadequate.</p> <p>Same — Jurisdiction or Equity to Abate.— In such case, it may appear that the remedy in equity would be more effective, where all the rights of the parties could be investigated, and the decree framed with greater care, and more exact reference to the grievance complained of. Thayer, J., dissenting.</p>

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