Volume 14 — Oregon Reports

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

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

<p>Attachment—Contbact.—Under a statute which provides that the plaintiff may have the property of the defendant attached 11 in an action upon a contract, express or implied, for the direct payment of money, which contract is made or is payable in the state,” if the contract in suit was not made in this state, there must be an express stipulation that it shall be paid in this state, to entitle a party to an attachment upon it. And it seems a subsequent promise to pay here would not change the rule in a suit brought upon the original contract.</p> <p>Constbuction of Statute.—It is a familiar rule that the legislature, in adopting a statute of another state, adopts with it the judicial construction of that state, as understood at the time.</p>

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

<p>Former Appeal—Law of the Case.—The legal propositions which have arisen and been, decided on a former appeal, whether correctly decided or not, become the law of the case so far as applicable to the facts developed on a subsequent trial.</p> <p>Appeal from Judgment on Demurrer — Practice—Answer Over.— Upon appeal from a judgment overruling a demurrer, this court will not entertain a motion for leave to plead over. Such application should be made in the first instance in the court below, and is addressed to its discretion. This is a judicial discretion, however—not arbitrary—and is always to be exercised in furtherance of justice.</p>

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

<p>^Parties—Joinder of—Judgment Against Part Only.—In an action against several upon a joint obligation, wbere all the defendants have been served, judgment may he liad against any or either of them severally, where the plaintiff would be entitled to such judgment if such defendants had heen sued alone. But this rule does not authorize a recovery agaiust a part of the defendants in such case, where the others are also liable.</p> <p>Same—Contract—Tenancy in Common.—"Where several tenants in common of land jointly contract with a hrolrer for the sale thereof, they are properly joined in an action for the breach of such contract, unless it appears that such agreement was made in regard to their several interests. It is their agreement that determines their liability, and not the fact that they owned several and unequal interests in the land.</p> <p>Supreme Court—Appeal — Jurisdiction on.—This court can reverse, affirm, or modify judgments appealed to it from circuit courts, and direct a new trial when properto do so ; but it has no right to pass upon questions in advance of those courts, and must confine its action to determinations already had.</p>

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

<p>Appeal—Error Must Affirmatively Appear.—This court does not presume error by inference from the record, nor declare it except when it is made to affirmatively appear.</p> <p>Forcible Entry and Detainer—Appeal in—Undertaking on.—On appeal by a defendant from a judgment against him in an action of forcible entry and detainer, the giving of the undertaking for payment to the plaintiff of twice the rental value of the property, etc., prescribed in Sec. 10, C. 23, Misc. Laws, is a prerequisite to the right of appeal.</p>

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

<p>Usury—Pleading.—An allegation in an answer that the note in suit was in fact payable in this state, but on the face thereof was made payable in California for the purpose of evading the usury laws of Oregon, is defective, in not alleging an agreement between the parties at the time to make said note so payable for a fraudulent or wrongful purpose. Such allegation is not a fact but a conclusion.</p> <p>Same—Foreign Law—Presumption.—A party relying upon the law of another state must plead it, and then allege such facts as brings the case within the law. In such case, we do not presume the laws of another state are like our own.</p> <p>Usury—What Necessary to Constitute.—To constitute usury, there must be (1) a loan, express or implied; (2) an understanding between the parties that the money shall be returned; (3) that a greater rate of interest than is allowed by law shall be paid or agreed to be paid; and (4) a corrupt intent to take more than the legal rate for the use of the sum loaned.</p> <p>Contract—Attorney’s Fees.—A stipulation in a mortgage for the payment, in case of suit, of twenty per cent, on the amount due as attorney’s fees, whether judgment should be recovered or not, is in violation of the rule of just compensation, and contrary to public policy. Nor will the court in such a case allow a reasonable attorney’s fee.</p>

<p>Cumulative Damages—Remedial Statute.—A statute giving cumulative damages to the party aggrieved is remedial, not a criminal statute ; tlia aetion given by section 3 of “ An act to prevent and punish gambling,” approved Oct. 20, 187G, is therefore a strictly civil action.</p> <p>Constitutional Law—Title of Act—Civil and Criminal Provisions.— The title of the act “ to prevent and punish gambling,” is broad enough to comprehend the provisions of said section 3, giving a remedy by civil action for double the value of the money or thing lost. There is no legal objection to the mingling civil and criminal provisions in the same act.</p>

<p>Ejectmeno^-Pleadins—Amendment.—In an action to recover the possession of real property, where a complaint otherwise in the usual form alleges that the defendants are in possession, “ or claim the possession,” of the above described real property, as the owners thereof, and in reply to an answer setting up ownership, possession, and the statute of limitations, “ deny that the defendants had been in the possession of the premises at all, or that they had possession of any part or portion of them at all”; it was not error to allow the plaintiff, after the case came on for trial, to amend his complaint and reply by striking out the words above quoted.</p> <p>Same—Continuance.—Great liberality in amending pleadings under our system should be shown, when the justice of the case requires it. Care should be exercised that the opposite party be not misled to his prejudice, and this can usually be avoided by a continuance.</p> <p>Same—Adverse Possession—Color of Title.—Where the plaintiff proves title in himself, that entitles him to the possession, unless the defendants show a title in themselves, or an adverse possession for the period of ten years. To constitute adverse possession there must be an occupancy under a claim of ownership, though it need not be under color of title.</p> <p>Same—Deed of Quit Claim.—A quit claim deed, or any instrument that purports upon its face to convey title, is sufficient to constitute color of title.</p> <p>Exf.cution Sale—Description— Order of Confirmation.—An order con. firming a sale of lands on execution, which describes the land as “ part of Sec. 29, T. 1 N., R. 2 E., containing 160 acres more or less, being a portion of the donation land claim of Henry and Jane Swift, and being described on plot as Notification No. 61G5, in Multnomah County, Oregon,” is insufficient to identify the land.</p> <p>Special Verdict.—The refusal of the trial court to direct special findings by jury is a matter wholly within its discretion, and will not be reviewed by this court.</p>

Multnomah County. Defendants Neff appeal. This suit is to partition a tract of land known as the Neff Donation Land Claim. The complaint is in the ordinary form, setting out the interests of the several owners as follows: In respondent Wells, four-ninths of whole claim, and six thirty-sixths of the Petty tract. In respondents Whalley and Fechheimer, one-sixth of whole claim, an undivided twelve and a half acres in whole claim, and one-sixth o£ the Petty tract.

<p>Conveyance—Real Estate—Possession.—Where a father takes a deed to land in the name of his infant son, goes into possession and improves said land, his possession is the possession of the son.</p> <p>Same—Statute oe Erauds — Resulting Trust.—Where it is claimed that the property in controversy was purchased by the husband of the defendant under an agreement that the deed should be taken in her name, but it appears there was no writing ; that the purchaso price was paid wholly by the former, as also the cost of all improvements, and the premises were occupied by all the parties as a family residence ; such facts furnish no foundation to support such claim.</p> <p>Husband and Wife — Married Woman’s Separate Estate.—Under the laws of this State in 1SG4, a husband and wife could not contract with each other, unless respecting the wife’s separate property.</p> <p>Statute of Limitations.—Where the title to land is in an infant, and his mother, with whom he lives, occupies the premises as a family residence, receipts for rents and lists the property for taxes in the name of the owner, and in various other ways, up to the time the suit is commenced, explicitly recognizes his title, on no occasion setting up or claiming title in hei'self: under such circumstances her possession was not adverse, and the statute of limitations never began to run.</p>

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

<p>Husband and Wife—Separate Property of Married Woman.—When a wife, honestly conducting a business in her own name, and for her own benefit, in good faith employs her husband in the management thereof without compensation, such employment is not per se a fraud upon the creditors of the husband, and does not have the effect to subject to their claims her interest in the business or the profits thence arising.</p> <p>Same—Fraud—Employment of Husband.—Such an arrangement, however, on account of the opportunity afforded by the marriage relation to conduct a scheme to defraud creditors, ought to be vigilantly scrutinized whenever fraud is charged. Any device designed to cover the property or acquisitions of the husband debtor, or conduct his business iu the name of the wife to defraud creditors, the law will not tolerate.</p> <p>Same.—If a husband choose to give his wife his services in the conduct of her separate business, the creditor, having no power over his volition, or to compel him to work for his benefit, is not defrauded.</p>

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

<p>Multnomah Countt. Defendants Goldsmith appeal.</p>

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

Multnomah County. Defendant appeals. Daniel Harvey died in 1868, leaving a will, which, after certain specific legacies, devised to his wife, Eloisa Harvey, the use during her life of all the residue of his estate. The executors, on April 18, 1871, loaned said Eloisa $5,100 belonging to the estate, and on September 15, 1878, $974.40 more, taking her notes therefor at 12 per cent, per annum.

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

<p>Guaranty—Fraudulent Representations.—Where a defendant who was sued upon a contract of guaranty under seal, for the expressed consideration of one dollar, answered denying any consideration for the guaranty, and alleging that prior to the signing of the guaranty, Watson, the original debtor, withoutthe consent of the defendant, transferred his account with the plaintiffs to the name of the defendant, said plaintiffs knowing that said transfer was unauthorized, and that said defendant had no interest in the business of said Watson, or tlie goods purchased by him; that at the time said instrument was signed, plaintiffs, for the purpose of inducing defendant to sign the same, represented to him that, as appeared by their books, lie was indebted to them $624.65; and falsely and fraudulently represented to the defendant that if lie would sign said instrument they would not use the same against him, nor hold him liable thereon; that defendant was thereby induced to sign said instrument, and that said representations were false, and known by plaintiffs to be false when made: Held, that such facts are not sufficient to relieve the defendant from liability on such contract,</p> <p>Instruction.—In such case an instruction to the jury, that “ if the debt guaranteed was the debt of the defendant, then the plaintiffs are not entitled to recover,” is outside the issues, and therefore erroneous.</p> <p>Appropriation of Payments.—Where the creditor collects from the debtor under execution, on a judgment covering the sum so guaranteed and other indebtedness, a part of the amount due, such sum is so far a satisfaction of the guaranty.</p>

<p>Partnership—Accounting—Liability to Copartner.—In ordinary accounting between partners, they are liable to each other severally, but not jointly. But wliere, soon after the formation of the partnership, one of the partners is excluded from all participation in or knowledge of the business, and from all share of the profits, and under such circumstances as to show a purpose and concert of action among the other partners to accomplish this end, the latter are liable jointly and severally to the partner so excluded.</p> <p>Same—Former Decree—Law oe the Case.—Where, in a suit for an accounting, after a decree in this court declaring a jiartnership, and directing that the partners account severally, the cause is remanded for the taking of additional evidence, and upon a second appeal to this court additional facts appear, requiring the application of a different rule of law from that applied on the former appeal, this court must apply the law to the new facts as they appear. The law of the case does not apply to the facts, hut only to the law.</p>

Multnomah County. Defendant appeals. The property in question was acquired by the plaintiff, Hexter, by purchase from the firm of Clinton & Fagan, and liad been attached by. Buckley, of San Francisco, and the property in controversy was then in the hands of the sheriff. Fleckenstein & Mayer procured the plaintiff Hexter to purchase the property of said C. & F., and thereby enable them to have said attachment released.

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

<p>Specific Performance—Peeadinc!—New Matter.—In a suit for specific performance, the defendant has a right to plead in his answer, as new matter, a contract different from the one alleged in the complaint, and the court will then ascertain from the evidence which was the real agreement.</p> <p>Same—Decree.—In such case, if the court finds the agreement alleged in tlie answer to be the real agreement, the defendant is entitled to a decree in accordance therewith.</p> <p>Yendok and Yendbe—Good and Sufficient Deed—Wakkantyv—Where the terms of a contract are such as to bind tbe grantor to convey by good and-sufficient deed, or to make a good and sufficient conveyance, be tan only perform his agreement by making a good and sufficient title. But where it appears from tbe contract, or the circumstances accompanying it, that the parties bad in view merely such a conveyance as will pass all the title which the vendor had,_ whether defective or not, that is all the vendor can insist uppn.</p>

Josephine County. Plaintiff appeals. This action was originally brought by the respondent here in a justice’s court, where, after an answer filed by the appellant, judgment was rendered for Pettengill for the amount claimed, with costs. After the expiration of thirty days from the rendition of the judgment, Ramsey, defendant in the justice’s court, sued out a writ of review, which was dismissed by the circuit court ; hence the appeal.

<p>Railroads—Negligence — Contributory Negligence—Nonsuit. —The plaintiff, an experienced switchman and car-coupler, while in the employ of the defendant company, was injured iu coupling a car loaded with railroad iron rails, which projected beyond the platform of the car. The plaintiff and his fellow-servants in the defendant’s yard each had the right, when a car was received so loaded as to render it dangerous to handle, to report the fact to the foreman of the yard, whose duty it then became to adjust tbe load so as to render it safe. The latter, at the time of the accident, had uncoupled the car iu question from the train in which it had arrived, and- sent it to the plaintiff to be coupled to other cars, and though he sawthat the rails projected, did not notice that they projected so far as to render the car unsafe to couple ; and there was no other evidence of notice to the defendant or its servants of the dangerous condition of the load. The plaintiff, as the car approached him, observed that the rails projected (as was usually the case) but did not discover that they projected so far as to render them dangerous. Held: That the evidence did not show such freedom from negligence on the part of the plaintiff, nor such negligence on the part of the company, as to render it liable, and that the defendant’s motion for a nonsuit should have been granted..</p> <p>Same—Extra Hazard.—In this class of cases it is necessary to determine, before a recovery can be had, that the risk imposed by the company upon the employee was of an unusual character ; and «here the company adopts a mode of doing a certain kind of business more dangerous tbau some other mode would be, aud its employee, knowing the fact, continues in its employment, and acquiesces iu such mode, he cannot, in case of injury, claim that he was exposed lo danger of an extroardinary or unusual character.</p> <p>Same.—A party has aright to contract to perform any lawful business, however hazardous it may he, and notwithstanding it is rendered more risky than it otherwise would be, by the manner in which (he employer conducts it; and in such ease the employee takes the attendant risk,</p>

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

<p>Quo Warranto—Review—Policeman—Removal eeom Oeeice.—Where a policeman of the city of Portland is removed or suspended from office by the mayor and common council, upon insufficient cause, and another appointed in Ms place, he may maintain an action in the nature of a quo warranto against the intruder. Qii&re, whether in such case a writ of review would not lie, to obtain a reversal of the action of the mayor and council.</p> <p>Same—Collateral Proceeding—Title to Oeeice.—An action against the city by an officer so removed, for salary subsequently accruing, cannot be maintained until there has been an adjudication in a direct proceeding declaring him entitled to the office, and the incumbent a usurper.</p>

<p>Review— Necessarv Parties m.—In a proceeding to review the action of a county court in granting or refusing a license to sell spirituous liquors at retail, and analogous cases, the county or public corporation whose acts are to be reviewed must be made a defendant.</p>

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

<p>Appeal prom Justice’s Court—Notice, what Sufficient.—On appeal . from a'judgment of a justice’s court, a notice wliicb is in writing and makes known to tbe opposite party that an appeal is taken in the particular case, is a sufficient compliance with Sec. 69 of the justices’ code.</p> <p>Same—An objection to tbe sufficiency of the service of the notice of appeal when not made in tbe court below, will not be considered in this court.</p>

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

<p>Donation Law—Husband and Wife—Imbued Trust.—Where the plaintiff and her husband, after having completed the period of residence and cultivation required by the donation act, sold their donation claim, and the husband invested the proceeds in other lands, taking the title thereof in his own name, and thereafter lived with the plaintiff on said lands up to the time of his death, a period of over twenty years, and during all of said time recognized the plaintiff’s right to an undivided half interest in said lands : Held, that the title of the husband in an undivided half of said lands was subject to an implied trust in favor of the plaintiff; nor did the neglect of the plaintiff during such period to bring a suit to establish her right in the land render it a stale claim.</p> <p>Same—Adverse Possession.—Possession, to constitute a bar, must be adverse ; and neither a husband nor wife can hold adversely to the other, premises of which they are in the joint occupancy as a family. Adverse possession cannot begin until there has been a disseizin, and to constitute a disseizin there must be an actual expulsion of the true owner for the full period prescribed by tbe statute.</p> <p>Same—Separate Estate.—It seems tbe act of Congress known as the donation law vests in the wife, upon compliance with its terms, a separate estate as to one-half the land claimed. The act not only conveyed to the wife an estate, but capacitated her to hold it in her own right, without the intervention of trustees to prevent the marital rights of the husband from attaching.—Per Thayer, J., concurring.</p>

<p>Divorce—Dismissal oe Suit—Contempt.—Where, after issue joined in a divorce suit brought by the husband, the court made an order directing the plaintiff within thirty days to pay into court for the use of the defendant a sum of money to enable her to defend, and the plaintiff failed to comply within the time named, but at the ensuing term of court deposited the .money with the clerk, and at the same timefiled his affidavit, showing that 'his default was owing to his inability to raise the sum within the time pre•scribed, it was error to dismiss the suit upon the ground of sucji default.</p> <p>.Same.—The facts disclosed do not present a neglect or refusal to obey the order of the court from contumacy or fraudulent conduct, and the reason •assigned for the delay constitutes a sufficient excuse to purge the contempt.</p>

<p>Beflevin—Sureties in—Liability eor Costs.—In an action for tbe recovery of personal property, the sureties in the undertaking “for the payment to the defendant of such sum as may, from any cause, be adjudged against the plaintiff,” upon a judgment adverse to the plaintiff, are liable for the costs of the action.</p> <p>Same—Interest.—But such liability is limited to the amount of the penalty stated in the undertaking, with interest from the time judgment is rendered in the original action, and the costs of such proceeding as may be instituted to enforce the liability.</p>

<p>Criminal Law—Evidence—Dying Declarations —Discretion of Court. —In a prosecution for murder, the dying declarations of the person alleged to have been murdered are competent against or for tlie accused. Tho admissibility of such evidence is not confined to cases in which no other evidence of the killing is obtainable, but is in the sound discretion of the trial courts.</p> <p>Same—Must be Confined to Pacts, not Conclusions.—Such declarations are permitted only as to those facts as to which the deceased would have been competent to testify if sworn in the case. But the statement of tlie deceased concerning the defendant, that '• he shot me down like a dog,” is not such a conclusion as to be excluded under this rule.</p> <p>Same—Constitutional Law.—The constitutional provision that in all criminal prosecutions the accused shall have the right to meet the witnesses face to face, does not prohibit such testimony, nor does it apply to such documentary evidence to establish collateral facts as would be admissible under the rules of tlie common law in other oases.</p> <p>Same—Challenge to Juror—Bias.—Upon tlie challenge for actual bias of a person called as a juror in a criminal case, the question to be determined is, whether there exists upon his part such a state of mind in resjiect to the party challenging that he cannot try the case impartially, and tliis is to be determined by the exercise of a sound discretion. A juror who lias formed an opinion of the guilt or innocence of tlie accused, based merely upon newspaper accounts or general rumor, though such as might require evidence to remove, is not necessarily disqualified thereby, if it appears to tlie trial court, from all the circumstances, that he can try the case impartially.</p> <p>Same—What Subject to Review.—This court will not review the action of tlio trial court in accepting a juror, unless there are cogent circumstances showing his incompetency, such as having heard the testimony in the case, read a detailed statement of it, or been told it by some one claiming to know.</p> <p>Same—Instruction to Jury.—A statement by the court, in its instructions to the jury, of the effect of a disagreement at common law, and tlie mitigation of tho rule in the United States, coupled with the re- ■ mark that they would have to remain together, and not separate until they agreed upon a verdict and brought it into court, is not objectionable, as indicating a determination to keep them together un il they should agree, nor does it imply that the ease, in the mind of the court, was so plain that they would not he justified in failing to agree.</p> <p>Same — Evidence — Defendant as Witness — Cross-Examination. — Under the statute of this state allowing the accused to become a witness in his own behalf (Laws 1880, p. 28), it is error to compel hipi, on cross-examination, to answer as to any facts not testified to in his direct examination.</p>

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

<p>Riparian Rights—Floatable Stbeaji.—If a fresb water stream is capable of serving an important public use as a channel of commerce, it should be considered public; if only a broolc, although it may serve to float down saw-logs for a few days during a freshet, it is not therefore a public highway. "Whether it is the one or the other depends upon its capacity, extent, and importance.</p> <p>Same—Use of Banks.—The right to float logs down a stream does not confer a right to run them upon the adjacent land, nor to cause the water to overflow the banks to the injury of the shore-owner; and it is immaterial whether an injury so occurring arises from the negligence of the party or otherwise.</p> <p>Same—License.—A general license from the shore-owner to float logs down a private stream would confer no greater right upon the licensee than he would have had without it, if the stream were navigable.</p>

<p>Sale—Cbedit—Action bob Goods Sold.—"Where credit is given for tbe price of property sold, on condition that a surety be given on tbe purchaser’s note therefor, such as shall be acceptable to the seller, and this condition is not complied with by the purchaser who has taken the property, the latter is liable to an action for the price before the expiration of the proposed term of credit.</p>

<p>Municipal Corporations—Audit op Claim—Torts—The provisions of the charter of the City of Salem that the common council has exclusive power to appropriate for any item of city expenditure, and provide for the payment of the debts and expenses of the city, and that no claim shall be paid until it is presented and allowed by the common council, do not apply to a claim of damages for injuries received in consequence of a defective cross-walk, or other tort.</p> <p>Same—Defective Way—Corporate Liability—Damages.—Under the provisions of the statute (Civil Code, Sec. 347, p. 182), a municipal or other public corporation is liable for damages occasioned to passengers in consequence of the neglect of its officers to keep its streets and highways in repair, unless exempted from such liability by express provision of the charter.</p> <p>Stare Decisis.—The rule criticised but adhered to, upon the principle stare deeisis.</p> <p>Evidence—Question for Jury.—In an action against a municipal corporation for injuries received from a defective cross-walk, upon an issue as to whether or not the streets on which such walk was located were common thoroughfares, maintained by the city, evidence that a former and tlie present supervisor of roads within the city, officers under the control of the common council, had repaired said walk several times, both before and after the alleged injury, though it did not show that the council had specially directed it, is sufficient to authorize the court to submit the question to the jury.</p> <p>Amendment.—An act of the legislative assembly, purporting to be an amendment of the charter of a municipal corporation, and conferring upon it important additional powers, but not changing existing authority nor presenting any different mode of exercising it, is not such an amendment as is prohibited by Art 4, Sec. 22 of the state constitution, that “ no act shall ever be revised or amended by mere reference to its title; but the act revised or section amended shall be set forth and published at full length.”</p>

<p>Divorce—Pleading—Couxter Claim.—In a suit for divorce, the defendant may, in an answer in tbe way of a cross bill or counter claim, demand and obtain tbe affirmative relief of a divorce, when shown to be entitled thereto.</p>

<p>Boundary—Meander.—To “ meander ” means to follow a winding or flexnous course, and. where a donation land claim is described as “beginning at a stake at low water mark * * * thence with the meander of the river,” by courses which, if run in straight lines from station to station, would not adhere strictly to the water line, the language used must be imderstood to mean a line which follows the sinuosities of the river—that the river is the boundary of the land between the points indicated.</p>

<p>Board or Pilot Commissioners—Jurisdiction over Pilots—Notice.—The jurisdiction of the board of pilot commissioners for the Willamette and Columbia rivers over the pilots appointed by them is immediate and continuous, and upon a charge of misconduct against any such pilot, it is not necessary that a formal notice thereof be served upon him. It is sufficient that he be given an opportunity to explain or disprove the charge.</p> <p>Same—Attorney.—While such board cannot delegate to another the decision of any question which the law requires them to determine, they may employ an attorney to acquaint them as to the manner of conducting the investigation.</p>

<p>Criminad Law—Indictment.—In an indictment, it is generally sufficient to charge the acts coming within the statutory description in the substantial words of the statute, without further expansion.</p> <p>Same—Opium Den — Evidence. — In an indictment for frequenting an opium den for the purpose of smoking opium, where the offense is in its nature continuing from day to day, or constituted out of a series of minor acts, it is sufficient to charge the act as having been committed upon a particular day.</p> <p>Same—“Frequenting”—Question of Law and Fact.—To constitute the offense of “ frequenting an opium den,” &c., would require more than one visit; how many, it seems, would be a mixed question of law and fact, to be determined by the jury.</p>

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

<p>Equity—Allegations and Proof must Correspond.—The decree in a suit must correspond with the allegations, as well as the proofs. ■Hence, where the plaintiff alleges that being the owner of the property in controversy at the time of her marriage, the defendant, her husband, subsequently, by threats and undue influence, caused her to eonvey it to him, a decree for the plaintiff, based upon a finding that the property was purchased by the joint earnings of the plaintiff and defendant, was deeded to the plaintiff, and afterwards conveyed by her to the defendant without consideration, cannot he upheld.</p> <p>Costs and Disbursements.—Allowed to the plaintiff upon the ground that defendant, the plaintiff’s husband, was not free from fault in the inception of the controversy, and has property which came to- him during the marriage in some sense by the aid of the plaintiff.</p>

<p>Contract—Dependent and Independent Covenants.—Covenants whereby tbe defendant agrees to purchase of the plaintiff, on or before tbe expiration of the term of five years the property described, and that on the said payment by the said defendant tbe said plaintiff agrees to make to said company a good and sufficient deed, etc., are dependent covenants.</p> <p>Same—Construction.—In construing contracts it is a primary rule that the intention of the parties is to govern;but when the language of the Contract will admit of it, justice and "convenience incline to the construction of a simultaneous performance.</p>

<p>Ejectment—Statute os Limitations.—Adverse possession of real estate for the statutory period in this state, confers such a title as will support an action of ejectment.</p> <p>Same—Coloe, of Title.—When one goes into possession of lands under color of title, duly recorded, iu which the bouudaries of the tract are defined, this operates as constructive notice to all the world of the occupant’s claim to the extent of the defined boundaries.</p> <p>Same—Possession as Foundation of Title.—Where one relies upon a naked possession as the foundation of an adverse claim, there must be an actual occupancy, and the possession cannot be extended by construction beyond the limits of such actual occupation.</p>

<p>License to Sell Liquors—Constitutional Law—Amendment.—1The city of Astoria has power, under its charter, adopted in 1876, to license, tax, and regulate bar-rooms, drinking-shops, &c., and which provides that “no law or part thereof authorizing any tribunal or officer of Clatsop County to grant tavern or grocery licenses, shall apply to persons vending liquors within the city of Astoria.” An act of the legislative assembly of November 25, 1885 (Laws Spec. Sess. 38), provides “that every person obtaining a license to sell spirituous or vinous liquors shall pay into the treasury of the county, city or town granting such license” the sums therein named; and that the levy and collection thereof shall be in conformity with the ordinances respectively of such cities or towns, and the sums so collected should inure to their exclusive benefit. Held : (1) That the effect of the latter act was to amend the charter of Astoria in the respect aforesaid, and the charters of other cities which contained similar provisions ; and as this subject was not expressed in its title, the act was so far in conflict with Art. 4, Sec. 21 of the state constitution, that “no act shall ever be amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length.” (2) That the act was also in conflict with Art. 4, Sec. 20, of the constitution declaring that “ every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.</p> <p>Same—Legislative Proceedings.—The journals of the respective branches of the legislature are the official records of the proceedings of each house. Where these records show that a bill passed by one house was amended by the other in a substantial particular, and returned to the body in which it originated with a message purporting to recite the amendment made, but in fact stating it erroneously, and the latter body adopted a motion “ to concur in the amendment,” it seems such act never became a law.</p> <p>Same—Police Power—Bill to Raise Revenue.—An act to provide for licensing the sale of intoxicating liquors is not a bill to raise revenue, but an exercise of the police power of the state, and may originate in either house.</p> <p>Same—Mutilation of Record.—An act regularly passed will not be defeated by the partial obliteration of the enacting clause, when it does not appear to have been done by authority of the legislative assembly.</p>

<p>Wbit op Review—Question op Fact.—When the facts are all admitted, and the sole issue is one of law, the writ of review furnishes a cheap and expeditious remedy, hut is not adapted to litigate disputed questions of f ict arising between a county and a person having claims against such county.</p> <p>Same—Liability Against County—Ex Paute Proceeding.—Upon a proceeding to establish a claim against a county, the facts and all the requirements of law necessary to the creation of a valid claim must he made affirmatively to appear. And a somewhat stricter rule ought to he applied, when the original proceeding in the county court sought to he reviewed is wholly ex parte.</p> <p>Militia—County Judge—Discretion of.—Section 18 of the state militia law (Code, p. 668) has confided to the county judge a discretionary power in the matter of allowing or disallowing the application of a militia company to the proper military authorities, for arms and accoutrements. And before a county can be made liable for the expenses of an asmory and armorer, under section 19 of said law, it must appear that all antecedent requirements of the act have been complied with, and that the commanding officer of the company has duly applied to the county court to provide such armory and armorer.</p>

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

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

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

<p>Deed of Conveyance—Delivery.—The evidence reviewed, and held to establish the fact of the execution and delivery to the plaintiff of a conveyance of the real property in controversy.</p>

<p>Construction or Statute — States and Territories — Pilotage.—The word. “ States,” as used in tlie act of Congress of March 2, 1837, concerning pilotage on navigable waters forming the boundary of different states, comprehends territories, as being within the mischief which the statute was designed to remedy; andtheaetof the legislature of this state regulating pilotage on the Columbia river must be construed in subordination to said act of Congress.</p> <p>Pilots and Pilotage.—When a vessel which has been piloted in over the bar of the Columbia river to Astoria by an Oregon pilot, on her outward-bound voyage employs a Washington Territory jiilot to take her to the open sea, notwithstanding a tender by the former of his services for such purpose, the first is not thereby entitled to collect the full pilotage fees allowed by the local law.</p>

<p>Liens op Laborers—Construction op Statute—Common Law.—Although the statute of Oot. 21, 1878 (Laws 1878, p. 102), providing for liens of laborsrs and others, has extended the rule of the common law in respect to the persons who can acquire such liens, and given a definite remedy for their enforcement, still, in the main, it is only declaratory of the common law, and must he interpreted in accordance with its principles.</p> <p>Same—Possession Necessarv to Support.—To support a lien under said act there must, in the absence of a special agreement, be actual possession of the thing upon which it is claimed.</p> <p>Same—Harvesting Crop.—’Where the owner of a crop of growing wheat and the premises on which it is grown, employs another to out and stack it on the said premises, which the latter does, he does not thereby gain such possession of the crop as will entitle him to a lien thereon.</p>

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

<p>Umatilla County.</p>

<p>Equity—Suit to Set Aside Decree.—While bills of review liave been abolished by the code, it is only the form that is abolished, the substance remains ; and a suit to set aside a decree may now be maintained upon the grounds which would formerly have been sufficient to maintain a bill of review.</p> <p>Same—"When Maintainable.—A suit to set aside a decree cannot be maintained, where it appears that the plaintiffs not only knew but could have used at the former trial the matters upon which they seek to set aside the decree, and the only ground of relief asserted is that they were misled by the allegations of the adverse party in the former suit.</p>

<p>Promissory Note—Failure of Consideration—Defense. —In an action upon a promissory note, where the defense is that said note was given for medical services, upon a contract that if the payee did not permanently cure the patient he should receive no compensation, and that he falsely represented that he had so cured her, thereby inducing the defendant to execute the not e, these facts are sufficient, if established on the trial, to show failure of consideration.</p> <p>Judgment Non Obstante—Pleading, when aided by Verdict.—After a verdict for the defendant upon such an issue, the fact that the defense is defectively pleaded will not justify a judgment non obstante, unless it be totally defective in some essential particular. A defective statement of a good defense will be aided by verdict.</p>

<p>Deed—Acknowledgement and Peooe—Kecobding—Notice.—A deed in tliis state, duly signed, sealed and witnessed, conveys the title of the grantor as between the parties, and as to every one else by title subsequent, except a bona fide purchaser for a valuable consideration. The want of acknowledgment or proof, which may authorize the admission of the deed to record, does not invalidate the deed as between the grantor and grantee, nor as to persons who are chargeable with actual notice.</p> <p>Same—Evidence.—In an action of ejectment, where the defendant in possession of the property offers in evidence an unacknowledged deed to himself from the plaintiff’s grantor of an earlier date than the plaintiff’s deed, accompanied with proper proof of its execution, and offers to follow it with evidence that the plaintiff, at the time when the deed to him was executed, had knowledge of the defendant’s deed, it is error to reject such unacknowledged deed and evidence.</p> <p>Actual Notice—Possession as Notice.—Actual notice, it must he understood, is meant to include the knowledge of facts sufficient to put a party upon inquiry. Hence, possession under an unrecorded deed is a species of actual notice.</p>

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

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

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

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

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

<p>Former Adjudication—Nonsuit.—When it appears from the record of a proceeding that the court never considered the merits of the controversy, nor rendered any judgment affecting the same, but simply dis- . missed the plaintiff’s action, without trial and without evidence, such judgment of dismissal does not support a plea of former adjudication It is a mere nonsuit.</p> <p>Payment.—The evidence reviewed, and found to establish the defense of part payment.</p>

<p>Guaranty— Several Liability—Joinder of Parties.—In a contract of guaranty, the liability of the principal and that of the grantor are several, and they cannot be joined as parties in tbe same action.</p> <p>Same—Election. —'Where, upon the trial of an action, it appears that several defendants have been improperly joined, if the evidence shows a cause of action against each, it is the duty of the plaintiff, before the case is submitted to the jury, to elect which he will proceed against; else he can recover against neither, and a nonsuit may be granted.</p> <p>Same —Costs.—In an action against two or more defendants who do not sever in their defence, but one bill of costs can be allowed under Section 541 of the civil code.</p> <p>Same—Cause Sufficient for Jury—Corborations—Implied Contract— Ratification.—In an action against a college corporation for services rendered by the plaintiff as military instructor, where the evidence showed that the plaintiff had performed the services alleged ; that the corporation had received the benefit thereof; that the fact that such instruction was furnished was prominently mentioned in the official catalogue as an attraction to students; with other similar facts tending to show knowledge and acquiescence on the part of the trustees of the institution, in the employment of the plaintiff, though the only express contract therefor was made by one whose authority was denied, these facts tend to show suck knowledge and acquiescence on the part of tbe proper authorities of the corporation, as to entitle the cause to be submitted to tbe jury; and a nonsuit was therefore erroneous. A corporation cannot, any more than an individual, avail itself of the labor of a party, and then screen itself from responsibility, upon tbe plea that it never passed an.ordinance on tbe subject.</p>

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

<p>Trespass to Beal Property—Equity—Injunction Damages.—A complaint in a suit for an injunction to restrain tie commission of a trespass to real property, wliicb shows that the trespass has already been committed and the wrong spent its force, and from which it appears evident that the principal object of the suit is the recovery of damages, and the injunction only incidental, does not state facts to warrant the interposition of a court of equity, and the plaintiff will be remitted to liis action at law.</p>

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

<p>Counties — Division of.—"When a new'county is created, out of part of an old one, the old county takes the county property, and becomes liable for the whole of the county indebtedness, in the absence of legislative provision to the contrary.</p> <p>Same—Appoktionment of Taxes.—In such case the old county may be compelled to pay the whole of the state levy of taxes charged upon the county at the time the division took place.</p>

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

<p>Stnr to Set Aside Fraudulent Decree—Delay—Laches.—The general rule is, that no lapse of time or delay in bringing suit will be a bar to the remedy in equity to set aside a fraudulent decree, provided the injured party was ignorant of the fraud. But in such case, the delay must not have been negligent; and if, by reasonable diligence, the fraud could have been discovered, or ought to have been known, the complaining party will be deemed guilty of ladies, and equity will not interfere.</p> <p>Same—Acquiescence.—Hence, where a decree, entered nearly thirty years ago, granted affirmative relief to the present plaintiff, which she accepted and has ever since acquiesced in, and said decree was duly spread ujion the proper record, and the rights of third parties have since intervened, this court will assume that the plaintiff knew, or ought to have known, her rights under such decree, and will not entertain her suit to set it aside.</p>

<p>Conveyance — Consideration — Mistake — Misrepresentation. — Where a grantor in a deed acts under a total misconception of his legal rights, or the extent of his interest or estate in the thing granted, or where his confidence is imposed upon to his injury, and in other like cases, the lack of an adequate consideration will have a natural bearing on the question whether the deed ought to stand or not.</p> <p>Same—BTduciaby Relations—Paeent ayd Child.—A child is presumed to be under the exercise of the parental influence so long as the dominion of the parent lasts, and in such case it lies on the parent maintaining a gift from such child to disprove the exercise of such influence.</p> <p>Same.—Where the defendant, by importunity and misrepresentation, obtained a deed from her daughter, who, at the time, was only about seventeen years old, and, though recently married, still lived with the grantee, and it appears that such deed was made by the daughter in entire ignorance of her rights, it will not be allowed to stand.</p>

<p>Railroads—Duty of Traetmen.—The fact that persons are liable to be upon a railroad track at a particular locality where a train is to pass, if known to the managers of the train, or if they have reasonable grounds to expect it, whether such persons are there rightfully or wrongfully, would impose a duty of watchfulness upon them they would not ordinarily be under.</p> <p>Same—Negligence—Evidence—Question fob Juey.—In an action against a railroad company for injuries causing the death of the plaintiff’s intestate, who was a child about seven years old, it was error to reject evidence offered by the plaintiff to prove that persons had been in tlio habit of traveling up and down the railroad track at the place where the accident occurred, for several years prior to its occurrence. This was a circumstance which the jury had a right to consider, in connection with other evidence upon the question of negligence.</p> <p>Same—Contkibuutoey Negligence in Childben.—The negligence which will preclude a plaiatiH from recovering in such a case, is a failure to exercise that degree of care and forethought which a prudent person might be expected to exercise under similar circumstances, and the general rule is, that the same degree of prudence cannot be expected of children as of grown persons; hence, evidence that the intestate, being frightened by cattle, sought refuge upon the railroad trestle to make her escape, is admissible to rebut a charge of contributory negligence.</p>

<p>Creditor’s Suit—Attachment.—The lieu created by an attachment duly. levied upon the property of the debtor is a sufficient foundation for the jurisdiction of a court of equity to aid, by means of a creditor’s suit, in removing fraudulent impediments or conveyances which prevent the creditor from laying hold of the property and applying it to the payment of his debt.</p>

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